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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-03-22] British Columbia. Supreme Court Mar 22, 1989

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 13500  1  2  3  4  5  6  THE  REGIS1  7  8  9  10  THE  COURT  11  MR.  RUSH:  12  13  14  THE  COURT  15  MR.  RUSH:  16  17  THE  COURT  18  MR.  RUSH:  19  20  21  22  THE  COURT  23  MR.  RUSH:  24  25  THE  COURT  26  MR.  RUSH:  27  28  29  30  THE  COURT  31  32  MR.  RUSH:  33  34  35  36  THE  COURT  37  MR.  RUSH:  38  39  THE  COURT  40  MR.  RUSH:  41  42  43  44  45  46  47  THE  COURT  Vancouver, B.C.  March 22, 1989  (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  TRAR:  In the Supreme Court of British Columbia,  Vancouver, this Wednesday, March 22, 1989.  Calling  Delgamuukw versus Her Majesty the Queen, at bar.  I caution the witness, you're still under oath.  :  Mr. Rush.  My lord, I want to interject in the cross-examination  at this point just to discuss two scheduling matters  with you.  :  Yes.  The first is the question of the re-arrangement of  the week of April the 17th and the 24th.  :  Yes.  We have made our best efforts at trying to see if we  could, of all counsel and witnesses and advisors and  so on, to determine whether or not the week of the  24th could be freed up --  :  Yes.  -- As an off week, and I do not think it's possible,  my lord.  :  All right.  So I recommend we continue with the present schedule.  And I regret we weren't able to do that, but I think  the scheduling had gone far too along the route to  alter things.  :  All right.  And we'll sit on the weeks of April  10th, 17th and 24th and off the week of May 1st.  Yes.  I think we have the witnesses presently  scheduled Mr. Brody on the 10th, Mr. George on the  17th, and Mr. Morrison on the 24th.  We'll continue  with that order and schedule.  :  Yes.  All right.  And, of course, the week of May the 1st is an off  week then.  :  Yes.  Now, my lord, the other issue that I'd like to raise  with you is the question of the scheduling of Mr.  Morrell's evidence.  Mr. Morrell is the next witness  to be called after Dr. Ray.  His evidence is scheduled  to commence in the week of March the 28th.  Well,  that's really the week of March the 27th.  As I  understand it the 27th is a non-sitting day.  :  Yes. 13501  1 MR. RUSH:  So the week of the 28th, of course, is a four day  2 week.  And there has been correspondence between Mr.  3 Grant and Mr. Frey of the Federal defendant indicating  4 that the time allotted in that week of four days may  5 not be sufficient to complete the examination,  6 principally the cross, as I understand it, because Mr.  7 Grant has advised the defendants that it will take  8 approximately two days for the direct.  It appears  9 that the cross may take a little longer.  Mr. Grant  10 has suggested that April the 1st be a sitting day,  11 which is Saturday.  And I raise now with your lordship  12 the spectre or possibility that the cross-examination  13 may move into the following week.  Now, there had, I  14 think, been some indication by your lordship that the  15 third week of -- April the 3rd is a week in which you  16 would be sitting in the Court of Appeal, or at least  17 not available.  18 THE COURT:  Not available.  I have to go east.  I'm free on the  19 Monday.  I don't have to leave until Tuesday.  20 MR. RUSH:  I see.  It may well be that it would be necessary to  21 sit on the Monday.  Now, my concern, as I'm expressing  22 it on Mr. Grant's behalf, is that we want to be sure  23 that the direct and the cross finish in a straight  24 time sequence.  2 5 THE COURT:  Yes.  26 MR. RUSH:  And it's our hope that if those two dates, the 1st  27 and the 3rd, are made available that that ought to be  28 sufficient to complete the cross.  What we would like  29 to know from the defendants now, or as soon as  30 possible, is is it likely that their cross will take  31 even longer than that, in which case that could  32 present some serious scheduling difficulties.  Now,  33 Mr. Frey, who's been the primary correspondent with  34 Mr. Grant, is not here today and I don't know if Mr.  35 Macaulay can address this issue of what the  36 anticipated length of the cross will be, but I think  37 it would be of great assistance to us to know whether  38 or not within the additional time that's now been  39 allotted we can complete the cross.  4 0 THE COURT:  You think you'll be two days?  41 MR. RUSH:  In direct, that's correct.  42 THE COURT:  And that will be four days if we sat Saturday and  43 Monday for the cross-examination.  Do counsel think  44 four days will be enough?  4 5 MR. MACAULAY:  My lord, four days will be more than enough.  46 It's not the problem of the number of consecutive  47 days.  The problem arises out of the plaintiffs' 13502  1 lengthy lists of documents that were provided for us  2 recently.  Quite recently.  Our advisor on the  3 fisheries matter is going through those and has asked  4 for a limited number of copies, a very limited number  5 of copies of documents recently.  If we get them in  6 time and if they can be worked through there shouldn't  7 be any problem at all.  8 I should add another thing.  Before the  9 examination in chief begins we'll be making some  10 submissions regarding the relevance of a lot of it.  11 If your lordship accedes to our submissions then there  12 will be a rather short cross-examination -- shorter.  13 So there may be no problem at all.  It may not be  14 necessary to sit either Saturday or Monday.  I hope  15 that's the case.  It's because we are still in the  16 process of getting documents, copies now of documents  17 and checking these long lists.  The first one is 176  18 items and then there were some others.  As we go  19 through them we may find that there's no problem, but  20 I would think that we could finish the thing by  21 Saturday certainly, and if Monday is held available  22 well we should -- it shouldn't be any problem.  23 THE COURT:  All right.  24 MR. MACAULAY:  Now, that's subject to Mr. Grant getting on his  25 bicycle and getting those photocopies of documents  2 6 down to us.  27 THE COURT:  Well, I'm sure Mr. Rush will pass those sentiments  28 along to Mr. Grant.  Mr. Willms.  29 MR. WILLMS:  My lord, I have the same comments.  The length of  30 time is not the issue, it's still that there are  31 documents coming in, and it's a question of whether or  32 not the witness will need to be stood down while the  33 documents are being produced and reviewed, but not a  34 question of the length of time.  35 THE COURT:  All right.  Well, everyone is in agreement.  We'll  36 tentatively schedule both the Saturday and the Monday.  37 If we find we don't need to sit on one or either of  38 those days so much the better.  If it is necessary for  39 us to do so then we will.  40 MR. RUSH:  Thank you.  41 THE COURT:  Thank you.  All right, Mr. Willms, whenever you're  42 ready.  Thank you.  43 MR. WILLMS:  My lord, I've handed up another gray binder which I  44 suggest bear the next exhibit number.  45 THE COURT:  Another empty binder in the old courtroom.  46 THE REGISTRAR:  And the next exhibit number will be 966.  47 13503  1 (EXHIBIT 966:  A.G. Binder of  2 Cross-exam Documents for Dr. Ray)  3  4 THE COURT:  I've been terrorized by the number of tabs you have,  5 Mr. Willms.  6 MR. WILLMS:  My lord, I hope that you can take some consolation  7 from the fact that I've been pulling tabs out from the  8 last several gray binders, and I hope to do it here  9 again.  10 THE COURT:  Very well.  11  12 AUTHUR JOSEPH RAY, Resumed:  13  14 CROSS-EXAMINATION BY MR. WILLMS CONTINUED:  15 Q   Dr. Ray, could you turn to page 57 of your report,  16 which is the conclusion, and the --  17 THE COURT:  I'm sorry.  What page was that?  18 MR. WILLMS:  It's page 57, my lord.  19 THE COURT:  Yes.  20 MR. WILLMS:  Exhibit 960.  21 Q   It's the portion that I read to you at the close of  22 yesterday's evidence, the assertion that the native  23 people here are able to maintain a high degree of the  24 economic independence.  Would it be fair to say that  25 the high degree of economic independence of the  26 Indians in this case depended upon fur trade from two  27 directions rather than any intrinsic sense of value  28 that the Indians had?  2 9       A   How do you mean?  30 Q   Well, there was trade coming in from the coast  31 which --  32 A   Right.  33 Q   Which preceded the Hudson's Bay trade.  34 A   Correct.  35 Q   The Hudson's Bay trade had actually influenced Babine  36 Lake by virtue of the fort on -- I can't -- Fort St.  37 James.  38 A   Right.  39 Q   And what my suggestion is that by the time Fort  40 Kilmaurs was established, and the notes that were made  41 which you concluded there was a high degree of  42 economic independence, that by that time that economic  43 independence was primarily related to the fact that  44 there were two different directions to trade and two  45 different directions to take your goods, your trading  46 goods, rather than anything that was intrinsic to the  47 natives of the area? 13504  1 A  Well, it's an interesting hypothesis, but the problems  2 I have with it are, first of all, by independence I'm  3 talking about relative independence.  This is in terms  4 of the ability of the native people on their own were  5 traders to suddenly be removed from both the east and  6 west to continue their existence at a fairly  7 comfortable level.  I would argue that there is no  8 evidence to suggest that from either the coastal  9 direction or from the eastern direction the natives  10 had acquired by this time European goods that had been  11 incorporated into their economy that made them  12 essential hunting tools, essential fishing tools, or  13 an otherwise essential for their subsistence.  The  14 general discussion of the coastal trade at this period  15 is that it predominantly was a trade oriented to the  16 feasting ceremonies.  There was a very heavy component  17 of what I think it's fair what we call luxury goods,  18 beads, blankets, things like that, that were -- that  19 were valued as one sort of -- the pre-eminent  20 historian on that, Gibson, says they were basically  21 things that could be counted.  This was what the  22 emphasis was on.  23 THE COURT:  Things that could be counted?  24 A   Yeah, easily counted.  25 THE COURT:  Tangible personal property?  26 A   Yeah, tangible personal property easily counted and  27 you stack it up and when these exchange ceremonies  28 goes on you can see the wealth that was there.  Now,  29 it's clear -- I'm not saying that there were no  30 firearms, because we've been through the comment with  31 Brown, one of these groups of Gitksan traders came  32 down and they were well armed with guns and spears,  33 and it was a menacing -- they were considered  34 menacing.  But Brown, if you recall the comments that  35 we cited from Brown the other day, he said one of the  36 problems that the Babine had as far as trapping was is  37 that most individuals did not have what he regarded  38 the essential tools of a trappers equipment.  That  39 maybe between five or six of them they could  40 collectively put together an equipment.  But that  41 suggests to me that the goods are there, they're in  42 circulation, they have not reached what I would  43 consider a level -- a threshold level of dependency.  44 That is the way I use the term.  45 MR. WILLMS:  46 Q   So you mean a dependency on the trade for subsistence?  47 A   That's right.  An economic dependency for subsistence 13505  purposes.  Maybe, if you can turn back in your report to page 11.  I'm sorry.  Could I then amend your report on page  57 where you say "They avoided becoming dependent upon  the Hudson's Bay Company" and can I add in their for  subsistence?  For -- if you were to make that change I would prefer  it to be subsistence technology.  For subsistence technology?  That's right.  All right.  Thank you.  Page 11 did you say?  Page 11.  And this is the discussion at the bottom of  the page and the quote from Peter Skene Ogden's  travels from Fort Kilmaurs, and you say there to the  settlement of Moricetown.  My first suggestion, Dr.  Ray, is that the date of 1820 is incorrect, and  that —  Yes, it should be 1830's.  Late 1830's, correct.  In fact we can pinpoint it to about 1837?  Yes, because he was chief factor from '35 to '45.  It  is correct later in the report.  He was chief factor at Fort Kilmaurs?  Of the New Caledonia district 1835 to '45.  And,  again, the date -- you're right, the '37 date is  probable, but not proveable probably.  Thank you.  One of the references to your report is to the Peter  Skene Ogden notes on Western Caledonia with that  forward by -- is it Professor Sage?  Yes.  All right.  Several years ago.  My lord, if that could be marked 966-1.  37 THE REGISTRAR:  966-1.  38  39 (EXHIBIT 966-1:  Tab 1 of Exhibit 966 - Peter Skene  40 Ogden's Notes on Western Caledonia)  41  42 THE COURT:  Yes.  43 MR. WILLMS:  44 Q   And just to tie down the date that Peter Ogden --  45 according to Professor Sage on page 46, which is the  46 second page of the extract, you will see that in the  47 second full paragraph, first line, Professor Sage  1  2  Q  3  THE  COURT:  4  5  6  7  A  8  9  THE  COURT:  10  A  11  THE  COURT:  12  A  13  MR.  WILLMS  14  Q  15  16  17  18  19  20  A  21  Q  22  A  23  24  THE  COURT:  25  A  26  27  28  THE  COURT:  29  MR.  WILLMS  30  Q  31  32  33  A  34  Q  35  A  36  MR.  WILLMS 13506  1 says:  2  3 "In 1835 Peter Skene Ogden received the  4 coveted commission of chief factor and was  5 sent to take charge of New Caledonia.  After  6 seven years' term of office he was prepared  7 to give over this task to his successor."  8  9 So that would mean that he was there from 1835 to  10 1842 according to this?  11 A   Yes.  He went on leave in '44, but I think he actually  12 doesn't give up his commission until '45.  I don't  13 remember all the details.  But, in any event, you're  14 right, he was there in the late 1830's to the early  15 1840's.  16 Q   Now, what follows is Ogden's notes to his successor.  17 And you've reviewed those notes?  18 A   Pardon?  19 Q   What follows at pages 47 through 56 are a transcript  20 of Ogden's notes to his successor?  21 A  M'hm.  22 Q   This is on his leaving, whether it's 1844 or 1845, or  23 1842 or '43?  24 A   Right.  25 Q   So that you recognize this as a transcription of  26 Ogden's notes?  27 A   Right, or what's attributed to Ogden.  28 Q   Or what's attributed to Ogden.  29 A   It's not absolute certainty that he wrote it, but yes.  30 Q   Now, just starting with the second paragraph, this is  31 purportedly Ogden speaking.  32 A  M'hm.  33 Q  34 "Having now been stationed seven years in  35 this District I cannot say much in favour of  36 the Carriers, a brutish, ignorant,  37 superstitious beggarly set of beings, lavish  38 of promises and should it so happen have no  39 feast to make for departed relatives take  40 precious good care like all rascals to loose  41 sight off.   The debt system was introduced  42 in to this district many years since and it  43 is the opinion of some it would not be a  44 good policy to do away with it at present  45 as independent of other considerations the  46 evil has taken too deep root, this could be  47 overcome but again it is said it acts as a 13507  1 hold on them from the great temptations of  2 low prices which the Coast traders who are  3 now annually in the habit of resorting to  4 the frontiers of the District in quest of  5 Furs, it may have this effect on some  6 although I have my doubts, still with many  7 at this place in debt of occasionally  8 clandestinely trading their furs."  9  10 A  M'hm.  11 Q   Now, just pausing there.  Assuming that that is Ogden  12 speaking, and that that's accurate, that seems to  13 indicate a change from your assessment of what Brown's  14 notes indicated in the 1820's?  15 A  Well, I would like to make several responses to that.  16 First of all, let's back up to Sage's comments about  17 Ogden.  Where is it here?  I was just reading this a  18 minute ago.  Somewhere in here he describes Ogden as  19 being a generous, or something or other.  20 Q   It's on page 46 at the bottom.  21 A   46 at the bottom.  22  23 "The 'Notes on Western Caledonia' are  24 probably a rough draft.  In places the  25 meaning is obscure and throughout  26 punctuation is difficult.  As few  27 emendations as possible have been made in  28 the text, and spelling of the original has  29 been retained throughout.  The document is  30 valuable because it gives details on the  31 trade in that 'Siberia of the fur-traders'."  32  33 Interesting point which reiterates the point I  34 made the other day, past two days, the traders hated  35 the place.  36  37 "Life was hard in that district and Ogden  38 does not minimize its difficulties.  39 Throughout the document, however, the  40 generosity and kindliness of Peter Skene  41 Ogden is evident.  He was keen and  42 experienced fur trader but he was never  43 lacking in humanitarian feelings."  44  45 Now, unfortunately, I don't have available to me  46 the Hudson's Bay Company records assessments of the  47 character of Peter Skene Ogden, but this is a THE  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16 THE  17  1  19  20  21  22  23  2 4 MR  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  COURT  A  COURT  A  13508  flattering portrayal of a man who was equally  described as vicious, nasty, had a low regard for  Indian people, and in prior to taking over New  Caledonia, I don't know if you're aware, but Peter  Skene Ogden led what were called the Snake River  expeditions south of the border.  And I think it was  on Monday I talked about the Hudson's Bay Company  which had the scorch earth policy south of the border.  That policy was at Peter Skene Ogden's hands, and he  was the one who ruthlessly destroyed the fur base of  the Snake River country south of the border before he  came into this area.  First of all, we have to  understand this man.  I think he is not -- Sage wrote  this many years ago.  What is the date of Sage's  observation?  :  '37?  Pardon?  1937.  :  It's dated in 1937.  I don't think that observation would hold up in  current scholarship.  Anyway, now, back to the quote.  I would like to point out that he is writing -- we  establish the date -- we agree on the date of '37 or  thereabouts?  WILLMS:  Q  A  37 to '42 -- no.  '37 to '44.  37 to '44.  So we are talking about a period that's  ten years or so beyond the period of Brown's  observations.  So I would expect some changes  occurred, yes.  It doesn't contradict Brown, however.  Now, the interesting point -- you raise a very  interesting point.  Q I just asked about the change. I'm not suggesting any  contradiction of Brown, I'm just suggesting does this,  if it's accurate, suggest a change?  A   I would say it suggests the possibility of change.  I  would like to elaborate on that next.  I didn't have  time, or didn't take the time the other day to go and  explain in depth what purpose of credit in the fur  trade was.  I think it's probably worthwhile to spend  a little time on that since you raise a very important  point, because theoretically it could give us a clue  about dependency.  As far as we can tell going back to  the earliest account books of the Hudson's Bay Company  credit was given.  It probably in fact derives from  the French fur trade of the pre 1670 era.  Generally  what fur traders tried to do, especially under  competitive situations, and this is what we are 13509  1 dealing with here, is they tried to extend credit to  2 the Indians in the hopes of laying a claim on their  3 future hunt so that if other traders came by and  4 offered a better deal the Indians would have already  5 pledged their furs.  Now, the problem is you could  6 cite virtually any area where the fur trade operated  7 and discover that sensible and helpful as that  8 strategy might have been to the Europeans in almost no  9 place did it work, because Indians, as he suggests  10 here, clandestinely, as they would regard it, carried  11 their trade elsewhere.  And we ran across that  12 yesterday, if you recall, in our discussions about  13 Nose-ess and the fish-net.  That was part of the gist  14 of that story.  The Indians didn't allow themselves to  15 be bound to one side or the other even though credit  16 was given.  So that very often you'll find the  17 comments that the Indians are uncreditworthy, and  18 you -- I can't remember whether I introduced in  19 evidence yet the issue of -- we did talk at some point  20 about that they were going to set up, if you recall, a  21 post at the mouth of the Bulkley River, and they  22 didn't.  He points out the problem that if they ran  23 such a post they would have to attach Kilmaurs to it  24 or it to Kilmaurs, depending on which way they decided  25 to orient the trade, because otherwise the Indians  26 would take credit at both posts and go back and forth.  27 Q   They did establish a post though at the Skeena Bulkley  28 River?  29 A   But much later.  30 Q   In 1860?  31 A   Yeah.  We are talking about some 40 years later.  So  32 the point in answer to your question here, I think  33 it's a reasonable question, but I think you have to  34 look at this with caution, and it may also help  35 explain why the very negative image of the Indians is  36 coming through here.  The Indians were not responding  37 in a manner that Ogden hoped they would.  But I would  38 also submit that Ogden is a very negative observer of  39 native people.  He was a hard man.  40 Q   Turn to page 49 of this.  This is on another point  41 that we mentioned from --  42 A   Of this?  43 Q   Yes, of Ogden's.  Page 49 if you move part way down  44 the page.  45 THE COURT:  I'm sorry, Mr. Willms, just a moment, please.  Page  46 49?  47 MR. WILLMS:  Page 49 of the next page, my lord. 13510  1 THE COURT:  Can I just stop you there.  You say he was a hard  2 man and Dr. Sage says that "he was never lacking in  3 humanitarian feelings."  What am I to do with that?  4 A  Well, as I said, unfortunately I didn't bring along  5 with me -- I can give you a different assessment of  6 Ogden.  But the point is that, as I was saying, one of  7 the most ruthless policies the Hudson's Bay Company  8 engaged in was this policy to create a fur desert  9 south of the border and they put that in charge of  10 Ogden and he ruthlessly carried it out.  He was a  11 fairly hard individual.  12 THE COURT:  What you're telling me is there were other views?  13 A   Yeah, there are conflicting opinions of this man.  14 THE COURT:  All right.  15 A  And I might add, this would be true of other fur  16 traders if we were to get into the people.  Probably  17 the best one you may be familiar with would be David  18 Thompson.  You read three different biographies of  19 David Thompson and you think you're talking about  20 three different men.  But all I can say is that there  21 is a harsher assessment of him, and I do know that he  22 did lead the Ogden expedition, so.  2 3 THE COURT:  Thank you.  24 MR. WILLMS:  On to the next page.  25 THE COURT:  Page 49?  26 MR. WILLMS:  Page 49, my lord.  27 Q   Part way down that first paragraph --  2 8 A   Right.  29 Q   -- You'll see a sentence, "When I first assumed  30 charge".  31 A  M'hm.  32 Q  33 "When I first assumed charge of this  34 District I found the gratuities given to the  35 Indians very great in the article of leather  36 particularly so, the latter and nearly all I  37 have abolished and abolished and no  38 diminution in our returns has resulted from  39 it and our expenditure decreased, it now  40 remains with you to lessen them and in doing  41 so gradually you will rest assured find no  42 bad effects resulting from it."  43  44 Just pausing there.  Accepting that that's a  45 truthful statement by Ogden that indicates a move by  4 6 the company away from trading leather with no  47 diminution in returns? 13511  1 A   No, I don't see that.  It says, "When I first assumed  2 this District I found gratuities given to the Indian  3 very great in the article of leather."  Gratuities,  4 now, that raises another point about trade.  The way  5 the trade was conducted you had gifts, relief, which  6 is what the company gave sick and destitute dependents  7 of regular traders, and outright trade.  What he's  8 saying here is we're no longer giving them that as  9 gifts.  So, in other words, what it tells us is that  10 gratuities, the gift component of the trade was still  11 there when he arrived on the scene and the key element  12 in the gift exchange was leather and he's no longer  13 giving the leather away.  Which if I were the trader  14 there at that point in time there would be two sides  15 to that policy.  Obviously leather as we've already  16 established was the critical thing in trade, but  17 giving it as a gift the Indians would be favourably  18 inclined to deal with you, but on the other hand if  19 you could trade it and force the Indians to yield furs  20 for it well then you would be better ahead  21 economically if you could get away with it.  So I  22 don't read it the same way you do, because if he had  23 said trade in leather then I would accept your thesis,  24 but he's talking about gratuities in leather.  25 Q   I just read it in the context of the next sentence  26 which says:  27  28 "The lending system I have entirely  29 abolished it was customary formerly to loan  30 guns, axes, tranches, moose skins and traps  31 to the Indians to such an extent that no one  32 on reflection would view it in any other  33 light than an abuse, the Carriers scarcely  34 ever returned an article loaned them but  35 always have some plausible excuse ready when  36 called on, in traps alone from the lending  37 system having so long prevailed as it is  38 only three years since I abolished it, are  39 now most abundantly supplied as regards this  40 place and the same has been adopted all over  41 the district and the returns have not  42 diminished and our indent on the last  43 article has been decreased one-half, they  44 are now sold to the natives at four skins  45 each formerly they were valued at six but  46 this was merely nominal as not ten out of  47 100 were ever sold." 13512  1 Just pausing there.  It seems as if the gratuities  2 that he was talking about is this lending system which  3 he abolished.  Is that the same as the gifts that you  4 were just talking about, or is it something different?  5 A  Well, as I said, there are three components to trade.  6 There's the barter trade, there is the credit trade  7 and there were the gratuities that were given out.  8 Actually four.  There were also, as I said -- he  9 doesn't mention it in here, it was also common company  10 policy to from time-to-time lend assistance to  11 dependents of regular hunters.  Now, so far as he's  12 suggesting that his change of system here was  13 successful.  I on the basis of this one document and  14 experience with Hudson's Bay Company records at large  15 I would withhold judgment on it in the absence of a  16 series of account books that demonstrate the effect.  17 And I say that, because the Hudson's Bay Company from  18 1670 to 1945, which is a full time span in which I've  19 studied that company, went through I don't know how  20 many rounds of attempting to eliminate credit always  21 saying that the efforts to do so didn't hurt their  22 trade, but the fact of the reality -- or the reality  23 always was they never did eliminate the trade, the  24 credit trade, because it was too essential to the  25 business.  So it's hard to assess this in isolation  26 without supporting accounting records, which is the  27 way I like to deal with these if at all possible.  But  28 all I can tell you is if you look at the later records  29 for New Caledonia in the later nineteenth-century the  30 company is still running a credit trade, with all due  31 respect to Ogden.  32 Q   Well, I don't read this as saying -- I mean in the  33 previous page I thought he said he didn't want to  34 abolish the credit trade although he thought it was an  35 evil?  36 A   You're saying here he isn't saying that, right?  37 Q   Well, he's changing the credits.  That's how I read  38 it.  Maybe I don't read it right, but my understanding  39 of this is the credit trade, he's not trading the guns  40 and axes and moose skins, and traps anymore, he's  41 trading something else?  42 A   Let's go over this page again.  If we go back to where  43 we started, "When I first assumed charge of this  44 district I found the gratuities".  Does not gratuities  45 suggest to you gifts?  46 Q   Well, I don't know.  I'm not a historical geographer,  47 Dr. Ray, but my understanding from what you said 13513  1 earlier in your evidence was that one way to get trade  2 going with the Indians in light of their habit of  3 giving gifts back and forth to each other,  4 reciprocating, was to give them something and then you  5 get something back, so it's not giving them something  6 without getting anything back.  Now, that's what I  7 understood gratuities was, but maybe I'm wrong.  8 A   No, no.  I just -- I thought you were questioning  9 whether I had interpreted gratuities given as gifts.  10 If we agree on that then I'll move on.  I take that  11 that that's what that means.  I thought you were  12 saying it didn't mean that.  I accept that's what it  13 says.  14 THE COURT:  Well, all he said is he questioned gratuities given  15 in leathers.  16 A   Yes.  Given.  So now we were talking about what all  17 this means.  If we go down now -- let me just read  18 that sentence and the next couple of sentences and  19 I'll stop where I think we should.  20  21 "When I first assumed charge of this  22 district I found the gratuities given to the  23 Indians very great in the article of leather  24 particularly so, the latter and nearly all I  25 have abolished and no diminution in our  26 returns has resulted from it and our  27 expenditure decreased, it now remains with  28 you to lessen them and in doing so gradually  29 you will rest assured find no bad effects  30 resulting from it."  31  32 Now, the lending system, now he's talking about  33 debts, right?  This is where he made a shift.  Now  34 he's talking about the lending system, which he claims  35 "I have entirely abolished".  So what Ogden is telling  36 us first of all is I'm cutting back on gratuities.  37 Secondly, I've already eliminated the lending system.  38 So he's talking about two of those four components of  39 trade, right?  40 Q   Including moose skins.  41 A  Moose skins were one of the things that were given in  42 debt, which makes perfect sense given the nature of  43 this trade.  So what he's trying to do here, and  44 something the company tried to do whenever it thought  45 it could and rarely got away with it, they're trying  46 to convert this whole trade to what they called a  47 ready barter trade.  In other words, Indians bring in 13514  1 the furs, they get the goods for the furs, they go  2 away and that's it.  No credits out, no gifts out, and  3 so on.  One of the reasons why -- re-reading last  4 night the coastal trade, it's quite interesting, one  5 of the reasons they tried this on the coast as well,  6 because they discovered that the native people when  7 dealing with close friends engaged in what was called  8 a balanced reciprocity.  In other words, the gift  9 exchanges in which you exchange items that you  10 mutually agree are of equal value.  However, with  11 strangers or non-related peoples or people who with  12 whom they had tension, the anthropologists refer to  13 another form of exchange which is called negative  14 reciprocity, in which you give a gift which you regard  15 as being of lesser value and expect to get -- of  16 lesser value than what it is that you're getting back.  17 And apparently the Western Caledonia and the Coastal  18 Carriers were quite good at this game.  So the company  19 would have had -- if this is so, and what you're  20 citing to me, which I find interesting, because I  21 haven't re-read this for sometime, suggests this is  22 one of the things you're trying to deal with.  They're  23 trying to extricate themselves from a native practice  24 that they have been drawn into.  25 Q   The next line on page 49, and it's really the  26 footnote, is the most interesting, but the next line  27 at the bottom says:  28  29 "Salmon are bartered at the rate of 90 for  30 one beaver and are paid for in the most  31 valuable goods."  32  33 And then footnote 11.  I guess this is Professor  34 Sage talking.  35  36 "The beaver skin was the standard of value  37 in the fur trade.  The made beaver or M.B.  38 became after 1837 the accepted standard.  39 Its cash value was not fixed but varied from  40 25 to 50 cents."  41  42 And then the last line.  43  44 "Even though the Carriers seemed to have  45 been astute traders the price of salmon can  46 hardly be said to have been very high."  47 13515  1 A   Can I comment on that?  2 Q   That doesn't seem consistent with what you've been  3 saying.  Maybe you could comment on it.  4 A   Okay.  This was written by Sage.  Again, when did we  5 decide this was?  Sorry to keep going back, but it's  6 important here.  19 --  7 THE COURT:  It's got a date at the top 1937, which is the date  8 of the publication.  9 A   Okay.  The fact of the matter is that people had a  10 very poor understanding of how the Hudson's Bay  11 accounting system worked, including Harold Innis.  And  12 the book I wrote, Give Us Good Measure, was a book  13 that focused based on an analysis of those account  14 books of how that system operated.  Now, Sage himself  15 here has made one fundamental error in that in 1810  16 the Hudson's Bay Company theoretically abolished the  17 beaver standard.  I say theoretically.  I'll come back  18 to that in a minute.  The made beaver standard was a  19 standard that was part of the Hudson's Bay Company  20 system from the first surviving account book, which  21 I'm going on memory here, I think is circa 1690-91,  22 and in there you'll see everything in terms of  23 standards.  Now, I tried to explain yesterday, and if  24 I had a chalk board, which I'm used to doing this sort  25 of thing on, I could probably explain it a little bit  26 better.  The company every year had two -- this is  27 going to get complicated, two sets of standards.  28 There were the official rates of exchange, which I  29 have argued were really accounting standards in which  30 the company equated beaver values to everything it  31 carried on inventory.  Now, the comparative standards,  32 which I think I have mentioned already, was the  33 standard which equated all native produce into beaver.  34 There was another standard that was called simply the  35 standard of trade which said a kettle is worth x  36 beaver, a yard of cloth is worth x beaver, a pound of  37 beads is worth x beaver, and so on.  So you do all  38 this so at the end of the year when these men close  39 their books, and all of this accounting was done --  40 the primary basis of all this was basically inventory.  41 So you start with the opening inventory, you have a  42 closing inventory at the end of the year, you subtract  43 away all the gratuities you've given away, they're  44 assigned a beaver value, you take away all the goods  45 that were sold to company employees which have a  46 beaver value, and what was left they said is what  47 appears to have been traded and that was given a 13516  1 value.  So if you have a certain list of goods then  2 you give a beaver value to those by the official  3 standard.  By the comparative standard you assign a  4 series of values of beaver.  Now, the fact of the  5 matter is that one of the striking things about the  6 Hudson's Bay Company trade is that the official  7 standards change relatively little over very long  8 periods of time, because they became the reference  9 point for which the traders and the Indians  10 negotiated.  Now, for the accountants in London what  11 they would then do for their convenience once these  12 furs would arrive back in England they would simply  13 convert back into sterling using the current beaver  14 price.  But the point is that the standards that  15 operated in Canada were usually not closely pegged to  16 the European market.  And I think in the writing that  17 I have done I have established that fairly well.  Now,  18 this business of I said that he was partly in error,  19 in the time when the Hudson's Bay Company and the  20 Northwest Company were at war with each other the  21 Hudson's Bay Company starts internal reforms, and the  22 key reforms, one of the biggest reforms was made in  23 1810 when first of all they make some of the officers  24 profit sharers.  Secondly, they abolished the beaver  25 standard for accounting purposes.  The orders go out  26 in 1810 that the men are no longer to keep their  27 accounts in beaver, but rather are supposed to keep  28 their accounts in sterling.  29 MR. WILLMS:  30 Q   But just pausing there, didn't you say earlier in your  31 evidence that the debt record and the exchange that  32 Brown was talking about was in made beaver?  33 A   I did.  34 Q   All right.  The only question that I had for your  35 comment was the comment that that was not -- that 90  36 salmon for one made beaver was not a particularly high  37 price?  38 A   No, but that was -- you asked --  39 Q   What's that got to do with London?  40 A   You asked me to comment about footnote 11, did you  41 not?  That's what I'm talking about.  42 Q   Oh, well —  43 A   I -- you want an explanation.  That's what I'm talking  44 about.  I'm responding to your question about that  45 footnote, and what I'm saying --  46 Q   Can I just narrow it to this.  I'd like to narrow it  47 to the last line.  I don't really care when made 1  2  3  4  5  6  7  A  8  9  Q  10  MR.  ADAMS  11  A  12  MR.  ADAMS  13  THE  COURT  14  15  16  17  18  MR.  ADAMS  19  20  THE  COURT  21  22  23  24  25  26  27  28  29  30  MR.  WILLM  31  Q  32  33  34  35  A  36  Q  37  38  A  39  Q  40  A  41  Q  42  43  44  45  46  A  47  Q  13517  beaver became the standard since you've indicated that  made beaver was the standard at least at the Kilmaurs  post in the 1820's, and he's talking about made beaver  here and says that even though the Carriers seem to  have been astute traders the price of salmon can  hardly be said to have been very high.  I don't have any trouble with that, but all I'm saying  All right.  We can move on.  :  Well —  My response is --  :  Excuse me, my lord, the question invited a comment.  :  I know.  It didn't invite -- I mean, there was  nothing wrong with what the witness has been saying,  but counsel has now pointed out the area he wants to  direct his examination to, and counsel has to control  the course of the cross-examination.  :  Yes, but in my submission he can't invite a comment  at large --  :  He didn't invite a comment at large.  There is a  misunderstanding with the witness and counsel as to  what the focus was with respect to be with that  footnote.  I've heard what the doctor said about the  date of 1837, although that's not what counsel now  says he was inviting comment on.  Surely counsel has  to be able to keep -- keep the cross-examination going  along the lines that he's interested in, and other  matters can be developed as necessary at  re-examination.  So just focusing on that line, I think your comment a  moment ago was that you don't have any particular  disagreement with that, that the price was not  particularly high?  No, not for salmon.  No.  Now, look, if we can return then to page 11 of your  report where you're discussing Ogden.  Right.  Now, you know that Fort Kilmaurs was moved in 1836?  Right.  And I'm showing you an extract from volume six, Helm  on the Subarctic, and the extract is an extract by  Margaret Tobey on the Carrier.  And if you would just  turn to the second page of the extract, which is page  414, it's got the map?  Right.  And you'll see that on the map the author here has 1  2  3  4  A  5  Q  6  7  A  8  Q  9  0  A  1  MR.  WILLMS  2  3  4  5  6  MR.  WILLMS  7  Q  8  9  A  13518  depicted -- and if you look over at Babine Lake and  you'll see the name Babine and then Old Fort 1836 and  Old Fort 1822?  M'hm.  Right.  So Old Fort 1822 was the original site of Fort  Kilmaurs that was established by Brown?  Right.  Right.  And 1836 was where the fort was moved to at  the north end of Babine Lake?  Right.  :  Okay.  My lord, 966-2.  (EXHIBIT 966-2:  Tab 2 of Exhibit 966 - Volume 6  Subarctic - June Helm)  Now, let's go to the actual account of Ogden, the tale  of Western Caledonia, and this is Exhibit 914.  I don't think I have that at the moment.  20 THE REGISTRAR:  Exhibit 914 is book three of Antonia Mills tab  21 41.  22 THE COURT:  I don't have it here.  23 THE REGISTRAR:  Yes.  Well, I have it here for the witness.  24 It's tab 41 of book three, Antonia Mills.  25 THE COURT:  Yes.  All right.  26 MR. WILLMS:  27 Q   I'd just like to fix the date of this trip.  And you  28 relied on this, and this is what you have quoted from  29 in part on page 11, the trip from Fort Kilmaurs to  30 Hot-set?  31 A   Not this exact copy here, but yes.  32 Q   Now, if you turn to page 35 of Exhibit 914, which is  33 the second page in, you'll see that Ogden sets out in  34 that full paragraph in the middle of the page it says:  35  36 "Fort Kilmaurs at the date of my present  37 story had been established about a year  38 only.  It had been my lot to superintend the  39 cutting of the first stick at its  40 commencement and to witness the hoisting of  41 the British flag."  42  43 So it appears that he made this journey -- if the  44 fort was established in 1836 he made this journey in  45 1837?  4 6       A   Yeah.  47       Q   Is that — 1  A  2  Q  3  4  5  6  7  A  8  Q  9  10  A  11  Q  12  13  14  15  A  16  Q  17  A  18  Q  19  A  20  A  21  Q  22  A  23  MR.  WILLMS  24  THE  REGIST  25  26  MR.  WILLMS  27  28  THE  REGIST  29  30  MR.  WILLMS  31  Q  32  33  34  A  35  THE  COURT:  36  MR.  WILLMS  37  Q  38  39  40  41  A  42  Q  43  A  44  Q  45  46  47  A  13519  Yes, we've more or less agreed on that.  All right.  And just before I go through this with the  map, you know, Dr. Ray, that sometime in the 1820's as  a result of a rock slide most of the inhabitants of  Moricetown moved en masse to Hagwilget Canyon and  built new homes there?  He refers to that in his 1826 district report.  Okay.  Just in terms of timing that movement took  place before this trip was made?  M'hm.  And you also recall from George MacDonald in The Epic  of Nekt on the trading trails that there's a trading  trail from the north end of Babine Lake, that is Fort  Babine 1836?  M'hm.  To Hagwilget?  M'hm.  Right.  You're aware of that?  Yeah.  Is that -- is that epic in evidence?  Yes, it is.  Could we see it?  :  Could Exhibit 847, tab 19 —  RAR:  This is the Sylvia Albright report, my lord --  book, I mean.  :  It was put in by the plaintiffs during Ms.  Albright's —  RAR:  That's tabs 1 to 39 inclusive, and this is tab  19.  And the trading trails are set out at page 75.  And  you'll see there is a trail numbered eight from Fort  Babine to Gitanmaax?  Right.  What page is that?  :  It's page 75, my lord.  Dr. Ray, I'm showing you a map which has Babine Lake,  and about the middle on the right-hand side the fort  in 1836.  And if you follow it across -- and are you  familiar with the geography in this area?  I've never been there.  So you've never been to Babine Lake?  No, I haven't.  The trading trail that George MacDonald describes as  trail eight goes from the north end of Babine Lake  through the Suskwa Pass --  M'hm. 1  Q  2  3  A  4  Q  5  6  7  A  8  Q  9  THE  COURT:  10  MR.  WILLMS  11  THE  COURT:  12  13  14  MR.  WILLMS  15  16  THE  COURT:  17  MR.  WILLMS  18  19  THE  COURT:  20  21  MR.  WILLMS  22  THE  COURT:  23  MR.  WILLMS  24  25  26  27  28  29  THE  COURT:  30  MR.  WILLMS  31  THE  COURT:  32  33  MR.  WILLMS  34  THE  COURT:  35  MR.  WILLMS  36  THE  COURT:  37  MR.  WILLMS  38  39  40  41  42  43  44  THE  COURT:  45  46  47  MR.  WILLMS  13520  -- Down along the Suskwa River to where it joins the  Bulkley River --  M'hm.  -- And then proceeds to the Skeena River.  It's about  the middle.  And I'm going to suggest to you, Dr. Ray,  that where --  I'm also interested in this trail nine as well.  Yes, well I'll get to that in a minute.  Can we mark the trail in some way.  I'm having --  :  Mark the trail, my lord?  I'm having difficulty even figuring out the  difference between the copy line and the edge of the  lake.  :  My lord, if you look -- the Babine Indian Reserve  is at the very north end of the lake, of Babine Lake.  Yes.  :  And there is a creek it looks like -- well, I  can't -- Telkwa Creek or something like that.  Let's all look at the same thing at the same time.  Let's go over to the table, please.  :  The Indian reserve is at the north end of the lake.  M'hm.  :  There is a creek flowing in through the reserve,  and if you follow the creek up you will see there is a  dotted line up to the Suskwa Pass and then the Suskwa  River and then following the Suskwa River down, and it  remains as the Suskwa River all the way down to the  Bulkley.  Where are you starting, Mr. Willms?  :  I'm starting at the Indian reserve.  Oh, isn't the fort way up at the end, north end of  the lake?  Isn't that the lake?  :  This is the north end of the lake.  Is that the end of the lake there?  :  Babine.  This is the little lake.  Oh, I see.  Okay.  Fair enough.  :  The confluence of the Suskwa and Bulkley -- if you  wanted to go to Moricetown from the confluence you  would go up the river and down the map to almost the  bottom of the map along the river, and if you wanted  to go to Hagwilget, then Hagwilget is just off this  map, but you would go downstream, and it is just off  the map on to the next map.  Mr. Willms, I'm sorry, I want to make sure.  Have I  marked in red on my copy the trail you're talking  about?  This is the Suskwa.  :  Down the Suskwa. 13521  1 THE COURT:  And then the Bulkley.  2 MR. WILLMS:  No.  This is still the Suskwa.  3 THE COURT:  This is still the Suskwa.  4 MR. WILLMS:  The Suskwa goes all the way down.  5 THE COURT:  This is the fort here?  6 MR. WILLMS:  At the Bulkley River, yes.  7 THE COURT:  And Moricetown you say is at the very bottom?  8 MR. WILLMS:  Bottom of the map.  9 THE COURT:  Yes.  All right.  Thank you.  10 MR. MACAULAY:  Has this map got a number, my lord?  11 THE COURT:  Not yet.  12 MR. WILLMS:  Not yet.  Perhaps it should.  13 THE COURT:  967.  14 MR. WILLMS:  967.  15  16 (EXHIBIT 967:  Map)  17  18 MR. WILLMS:  19 Q   Now, it's the starting point that's of interest, Dr.  20 Ray.  If you look at Exhibit 914.  21 A   914.  22 Q   914 is the Tale of Western Caledonia.  It's the Ogden  23 trip that you're talking about.  24 A   Oh, okay.  25 Q   And you will see he talks -- he starts talking about  26 his trip on page 36.  27 A  M'hm.  28 Q   And he says this in the middle of the page, "On  29 leaving Fort Kilmaurs our route lay towards the end of  30 the lake."  Then he talks about the canoe --  31 A  M'hm.  32 Q   -- And canoeing down the lake.  And then he talks  33 about where he gets to at the top of the next page --  34 A  M'hm.  35 Q   -- Where he says:  36 "A few hours served to take us to Nass-chick  37 a village occupied by some of the lake  38 Indians.  This village or rather hamlet is  39 situated at the extremity of the Nass at a  40 point where the opposite shores gradually  41 converging for some distance approach each  42 other so nearly as to indicate at the first  43 glance the commencement of the stream by  44 which the waters of the lake are  45 discharged."  46  47       A  M'hm. 1  Q  2  3  4  5  6  7  8  A  9  Q  10  11  12  A  13  Q  14  15  16  17  A  18  Q  19  A  20  Q  21  22  A  23  Q  24  25  26  27  28  A  29  Q  30  A  31  Q  32  33  A  34  35  Q  36  37  38  39  40  41  42  43  44  A  45  46  47  Q  13522  Now, it's my suggestion since we all know that the  Babine Lake discharges into the Babine River, and we  all know that Fort Kilmaurs is located up at the  north, and that there is a trading trail there, that  where he was going was to the north end of the lake  at -- as the commencement of his travels, his overland  travels?  Right.  All right.  Now, just from reading Ogden, I mean it  appears that Ogden is describing travelling to the end  of the lake where the lake discharges; correct?  Right.  And that would be something -- for an experienced  explorer like Ogden it would be difficult for him to  make a mistake about whether something was flowing  into the lake or flowing out of the lake?  M'hm.  Do you agree with that?  Yes.  We have him at the north end of the lake, right?  All right.  So he starts his trip at the north end of  the lake?  M'hm.  Now, if you look at the trading trails set out by  George MacDonald on page 75 you'll see that the  trading trail which is numbered nine to Moricetown  does not start at the north end of Babine Lake, it  starts part way down the lake?  Just a second here.  Right.  Okay.  See that?  Yes.  No problem with that.  Now, have you been to either Moricetown or Hagwilget  Canyon to compare the two?  I've been through there briefly once about six years  ago.  It's my suggestion to you, Dr. Ray, that when you say  on page 11 of your report that Hot-set was located on  the Bulkley River at the site of the present  settlement of Moricetown, and that based on the fact  that Ogden started his trip at the north end of the  lake that it's more likely, and also based on the fact  that the whole town moved according to Morice after  the land slide blocked the river, that he's describing  Hagwilget not Moricetown?  It might be useful if we want to pin this down to look  at, I think it's the E2 district report, if you want  to.  Well, I'm just trying to -- what did you use to pin it 13523  1 down to Moricetown?  How did you conclude from reading  2 Ogden that he ended up at Moricetown?  3 A   Because I was reading back from the record from  4 Hot-set which was clearly identified as the principal  5 village by Brown.  I can't say that I did it on the  6 basis of having travelled these trails, as I had not  7 been there.  8 Q   You would agree with me, would you not, that based on  9 George MacDonald's description of where trading trails  10 were and based on where Ogden said he started off,  11 which was at the north end of the lake, and also based  12 on the fact that Morice says that the village moved  13 after the land slide, and we have a lot of evidence  14 about that already, at least from other writers, that  15 it's more likely that he ended up at Hagwilget than  16 Moricetown?  17 A   It's possible by this time that they had moved to  18 there, yes.  19 THE COURT:  Doesn't Ogden say they felled a tree across the  20 gorge?  21 MR. WILLMS:  My lord, he says that they felled a tree across the  22 gorge, but I think, and I don't know if this is in  23 evidence, but there has been lots of fisheries work  24 done over the years along the river from the mouth of  25 clearing rocks and the like, and I really don't know  26 what the situation was then, and whether it was the  27 same as it is today.  28 THE COURT:  All right.  Is it beyond credibility that he — that  29 he visited Hot-set on the return journey and he was  30 describing Hot-set after having passed through  31 Hagwilget on the great circle route?  32 MR. WILLMS:  My lord, if you read the journey, and we can go  33 through it, it's clear that he goes up over a pass,  34 down the narrow valley, and comes upon a hill where  35 just -- just above where the river he's on joins the  36 main river and he can see the village laid out before  37 him, and it's 20 miles to Moricetown from where the  38 Suskwa comes in, but it's not very far to Hagwilget.  39 THE COURT:  Yes.  All right.  40 MR. WILLMS:  41 Q   Can we leave it this way, Dr. Ray, that you certainly  42 can't say whether Ogden got to Moricetown or  43 Hagwilget, all you can say is that he got to wherever  44 the people happened to be living at the time?  45 A   That he reached the Hot-set, yes.  46 Q   Yes.  47 A   That's for sure.  We could probably dispute the other 1  2  3  Q  4  5  A  6  Q  7  8  A  9  Q  10  11  A  12  13  Q  14  15  A  16  17  18  19 MR.  wil:  20  13524  part, but yes, we know he's describing what are now  known as the Wet'suwet'en.  Yes.  On your review of the documents did you come to  the conclusion that Brown had visited Hot-set?  He mentioned that he had twice.  And he also mentions having visited Hot-set and  criticizing their method of catching fish?  Yes.  And suggesting that the river was so shallow wherever  Hot-set was that they could put a weir across it?  That's what he said.  The Indians didn't seem to agree  with him.  That's what he said.  No.  That's what he said.  And that seems inconsistent  with a canyon setting, would you agree with that?  Would seem so, but on the other hand that is the  reason that the natives cite for using the dip net.  So we have two different points of view, the Indian  view and his view.  3:  This would be an appropriate time to take the  morning adjournment.  Oh, 11:15 is fine with me, my  21 lord.  22 THE COURT:  I wouldn't be able to come back until 11:30, and it  23 would waste seven minutes, and we can't do that.  24 MR. WILLMS:  We can't do that, my lord.  25 Q   Can you turn, it's in volume 3 of your binder, your  26 1988 draft, Exhibit 963, and it's at tab 5.  Now, is  27 this what you've done here is basically updated some  28 of the matters that you've considered in your report?  29 A   Not updated.  This was one of the very first drafts.  30 I originally did the research -- I can give you a  31 brief background on this.  I originally did the  32 research on tape in the archives in Winnipeg.  33 Q   Are you at the wrong tab?  I'm at tab 5.  34 A   Oh -- oh, sorry.  Tab 5.  I was at tab 3.  35 Q   Tab 5.  I've got a 1988 date on mine.  36 A   Oh, conference paper.  37 Q   Yes.  So this is your most recent discussion of the  38 topic; is that fair?  39 A   Certain narrow aspects of it for the purposes of the  40 conference, yes.  41 Q   Now, in that discussion at page one --  42 A  M'hm.  43 Q   -- You comment on a report -- this is at the end of  44 the first full paragraph you say:  45  46 "In a report prepared for the Crown  47 historical geographer Sheila Robinson argued 13525  1 that there is no conclusive evidence that  2 suggests that before the advent of European  3 influence in the claim area the Gitksan and  4 Wet'suwet'en lineages and families  5 identified ownership rights to large and  6 precisely tracts of hunting territories."  7  8 And the document that I have put to you is the  9 report that you are referring to --  10 A   Right.  11 Q   -- Is that correct?  12 A   That's correct.  13 MR. WILLMS:  My lord, Exhibit 966-3.  14  15 (EXHIBIT 966-3:  Tab 3 of Exhibit 966 -  16 Report of Sheila Robinson)  17  18 MR. WILLMS:  19 Q   I just would like to start with the assertion that you  20 make that Dr. Robinson is a historical geographer, and  21 you described earlier in your evidence the different  22 types of geography and one of them was a cultural  23 geographer?  24 A   Right.  25 Q   What's the difference between an historical geographer  26 and cultural geographer?  27 A   The difference of focus.  A cultural geographer and  28 historical geographer are often interested in the same  29 things, but one more interested in change in culture  30 over time, and the other would be more inclined often  31 to deal with culture in a given cross-section, if you  32 know what I mean, at a given point in time looking at  33 a people rather than looking at a people and their  34 culture changing all the time.  35 Q   Isn't another difference that an historical geographer  36 usually works with historical written records, whereas  37 a cultural geographer goes beyond and uses  38 anthropological and archeological tools as well?  39 A   Historical geographers use any historical evidence  40 that's useful.  It may be archeology, it may be  41 ethnography, it may be historical documents.  Even  42 historians would not claim it is to be restricted  43 solely to documents.  There is in fact a field in  44 history now called oral history, so there is a problem  45 if you're trying to draw those narrow a boundary.  4 6 Academics don't work in those tight compartments.  47 Q   Did you know when you made this comment on Dr. 1  2  3  4  A  5  Q  6  7  8  9  A  10  11  Q  12  A  13  14  15  16  Q  17  18  A  19  Q  20  A  21  Q  22  23  A  24  Q  25  A  26  27  28  29  30  Q  31  A  32  Q  33  34  A  35  Q  36  37  38  39  40  41  42  43  44  45  46  47  13526  Robinson's report that she has academic and field  experience in archeology and also academic training in  anthropology?  Yes, I do.  And you know that in her report in coming to the  conclusions that she comes to, which you comment on,  she relies on a significant body of archeological and  anthropological discussion to come to that conclusion?  I'm familiar with the sources.  I looked through her  bibliography very carefully.  And there are archeological and anthropological there?  Yes, correct.  I'd like to comment though that a lot  of the archeology is based on ethnographic  interpretation, so you're really hard pressed to  separate the two.  For example, Dr. MacDonald's archeology in The Epic of  Nekt was a combination of archeology and ethnohistory?  And ethnography.  And ethnography.  Correct.  And you're aware that he concluded in there that there  was significant tribal boundary change in the 1700's?  I'd like -- can we speak to that?  Well, first of all, you're aware that he said that?  But I'd like to deal with specifically what he says  about that.  Yes, he talks about it, but he does  not -- MacDonald does not suggest wholesale movement  of Gitksan people out of this territory.  He does not  say that in his article.  Well, do you have 847-19?  This is The Epic of Nekt?  The Epic of Nekt.  You'll see that at page 79 — at 79  he summarizes at the bottom --  M'hm.  -- And says that:  "Summarizing the argument to date, we can  see that the Kitwanga Fort National Historic  Site is set in a complex framework of  intertribal trade and warfare, which dates  perhaps as early as the first millenium B.C.  when trade and militarism appear in clear  evidence in the Prince Rupert Harbour  village sites.  From those times, a  situation of relative stability appears to  have prevailed until the early 1700's.  By  that time there is evidence for a widespread 13527  1 destabilization of population throughout  2 much of the Northwest Coast."  3  4 And then on the next page he talks about the  5 Kitwancool and other Gitksan tribes.  In the top of  6 the paragraph he says:  7  8 "In the interior, it appears the Kitwancool  9 and other Gitksan tribes were pushing north  10 at the expense of their Tsetsaut and other  11 Athabascan neighbours to secure the trading  12 trails that ultimately connected through to  13 southeast Alaska and the new sources of  14 wealth."  15  16 Now, I read that as a suggestion that the  17 Kitwancool and the Gitksans are moving into different  18 territory.  How do you read it?  19 A   I would like to go back over that paragraph and make  20 some emphasis.  21 Q   Okay.  22 A   Okay.  Starting with "Summarizing the argument to  23 date".  Actually -- okay.  Let's -- yeah, let's start  24 with;  25  26 "Summarizing the argument to date, we can  27 see that the Kitwanga Fort National Historic  28 Site is set in a complex framework of  29 intertribal trade and warfare, which dates  30 perhaps ..." --  31  32 I think you could put a big underlining on the  33 perhaps.  34  35 "As early as the first millenium."  36  37 Now, he is acknowledging coastal and interior  38 trade of great antiquity possibly existing, and I  39 don't have trouble with that, but it is a perhaps.  40 "When the trading and militarism appear", appear  41 should be emphasized, "in clear evidence".  It's not  42 clear evidence that appears in these sights.  43  44 "From those times, a situation of relative  45 stability appears to have prevailed until  46 the early 1700's.  By that time there is  47 evidence for widespread destabilization of 13528  1 population throughout much of the Northwest  2 Coast."  3  4 He's talking about coast, and I should think in --  5 when we review this evidence I would suggest that we  6 should also look at the historical atlas map again  7 that we had in evidence yesterday, because it's  8 relevant to this discussion.  Can we see that map?  9 THE COURT:  Why don't you think that over, Mr. Willms, and we'll  10 take —  11 MR. WILLMS:  He can certainly see it if I can remember what it  12 is, and where it is.  13 A   It's the plate from the historical atlas that we were  14 in the other day.  15 THE COURT:  We'll take the morning adjournment now.  16 MR. WILLMS:  Thank you, my lord.  Order in court.  Court will  17 recess.  18  19 (PROCEEDINGS ADJOURNED)  20  21 I hereby certify the foregoing to be  22 a true and accurate transcript of the  23 proceedings herein to the best of my  24 skill and ability.  25  26  27  28 Peri McHale, Official Reporter  2 9 UNITED REPORTING SERVICE LTD.  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 13529  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Willms.  4 MR. WILLMS:  My lord, one point perhaps while the witness is  5 reviewing the map that he wanted to see before the  6 break, on scheduling in case we do need extra time I  7 have spoken with my friends and subject to your  8 lordship, if we could perhaps start at nine o'clock  9 tomorrow morning instead of ten rather than sitting  10 late tonight.  I have a commitment that I can't get  11 out of.  12 THE COURT:  All right.  Well, I'll have to check and see.  I  13 think it's all right, but I don't know.  14 MR. WILLMS:  I am hoping that it won't be necessary, but --  15 THE COURT:  All right.  And of course —  16 MR. WILLMS:  — it's better than sitting Saturday.  17 THE COURT:  Of course we could sit late tomorrow afternoon too,  18 if necessary.  19 MR. WILLMS:  That I can do as well.  2 0 THE COURT:  All right.  21 MR. WILLMS:  Now, Dr. Ray, you suggested that in reviewing the  historical atlas that would help you consider whether  or not MacDonald is saying what he appears to be  saying about the movement of the tribes, of the  Gitksan tribes pushing north at the expense of their  Tsetsaut or other Athabaskan neighbours?  Yes.  I have one slight problem.  This copy I have is  cut off and a couple of the key words I wanted are cut  off as a result on this at last copy.  Is this the  only -- it's critical to what the point I wanted to  make about what he says about coastal destabilization  before I moved to the interior stuff.  Well —  Do you have a complete -- is yours --  It's not my exhibit.  I am sorry.  Oh, I can tell you what it says, but you'll have to  take my word for it, that's the problem.  Well, just -- I am sorry, but what are you trying to  get at?  Okay.  Well —  MacDonald is just describing the coast and he's not  describing the interior?  What I am trying to get at is this:  MacDonald is  saying that there is some movement, but he is  saying -- he's not saying that there is movement from  the core area at issue.  With regard to the northwest  22  Q  23  24  25  26  27  28  A  29  30  31  32  33  34  Q  35  A  36  Q  37  A  38  39  Q  40  41  A  42  Q  43  44  A  45  46  47 13530  1 coast population movement, for example, he states  2 right on this map that the coast Tsimshian villages  3 date back to at least five thousand years, and that  4 the movement he's talking about on the coast was some  5 movement northward from that core area.  Now, with  6 regard to the Gitksan, the movement there he's talking  7 in general terms in his summary, but if you look  8 earlier in the article you'll find that the main  9 movement he discusses is in fact the movement  10 specifically along one trail and that's trail number  11 three.  He claims they are moving northward to have  12 access to the Russians.  He does not say in the core  13 of the article, which is relevant to the summary, that  14 all of these Gitksan groups are pushing north.  That's  15 my point.  And that's why I am sorry that this --  16 these two paragraphs which is MacDonald's most recent  17 work or statements on the matter where they succeed  18 this Epic of Nekt are cut off.  So my point is, yes,  19 MacDonald is saying there is some tribal dislocations  20 occurring, perhaps as early as a thousand years ago.  21 He's not describing wholesale movement.  And the point  22 I also eas trying to make is that in all of this the  23 emphasis is on -- okay.  For example, the northern  24 shift, presumably the whole -- this whole report is  25 laced with that kind of terminology.  In the  26 interior -- going specifically to what your question  27 is now, in the interior he says it appears the  28 Kitwancool and other Gitksan tribes were pushing north  29 at the expense of the Tsetsaut - I don't know how you  30 say that word - and other Athabaskan neighbors to  31 secure trails.  Now, if you go back into the earlier  32 part of his article he talks -- he discusses -- he is  33 organized to deal particularly with that Kitwan --  34 what is it, Kitwanga Fort.  The main discussion there  35 is movement on that specific trail.  He's not talking  36 about general northern movement of all Gitksan.  Not  37 as I read it and not as he says it.  In any event, he  38 does not offer as concrete evidence that any of this  39 happened.  He offers us a lot of maybes, presumablies,  40 apparentlies, likelies, etc.  That's my -- that's my  41 main reaction.  42 Q   All right.  Now, the other thing that he suggests is,  43 and this is on page 80, that the causes for warfare  44 changed.  And let's see what you say about this.  It's  45 the middle paragraph.  He says:  46  47 "Warfare on the Northwest Coast -- " 13531  1 A   Right.  2 Q  3 "-- in the eighteenth century, I suggest, was  4 motivated by the desire to control a new and  5 scarce valuable resource.  These trade items  6 include metal, and especially such weapons as guns  7 and knives.  The old view of the contact period on  8 the Northwest Coast is proving to be far too  9 simplistic.  We tend to look only at the  10 exploration records that came with Maritime  11 contact, overlooking the vast traditional  12 histories of the Indian people for earlier decades  13 of the eighteenth century and beyond."  14  15 And then he says:  16  17 "Archeological research on the proto-historic  18 period in the interior has also been neglected."  19  20 Now, what I understand he is suggesting there,  21 especially if you read the previous paragraph which I  22 won't read out loud, is that the -- this movement,  23 wherever it was taking place, was taking place to  24 control this new and scarce resource which was related  25 directly to European trade?  26 A   Yes.  But in this case he also does not tell us when,  27 how much, how significant this trade was.  And I'd  28 like to read one more sentence where you cut off  29 there.  He said archeological research on the interior  30 has been neglected, and he carries on:  31  32 "For example, little has been done to investigate  33 and record the system of trails, bridges, forts  34 and camp spots that formed an arterial system for  35 trade goods throughout the region."  36  37 In other words, the very regions we are talking about  38 he says is poorly researched.  Which I read as  39 whatever we say about this archeological period is  40 therefore necessarily highly speculative.  Now, the  41 one issue that you are raising in this is the issue of  42 how influential were the Russians in this early  43 period.  And recent work in the most recent handbook  44 of the Smithsonian suggests that early Russian  45 influence was probably not that strong.  46 Q   I am showing you, it's an extract from a book entitled  47 "The Tsimshian, Images of the Past: Views for the 13532  1 Present" edited by Margaret Seguin.  You have reviewed  2 extracts of that in your report.  For example, the  3 Epic of Nekt is one of the extracts in this book?  4 A   Yes.  But I am not claiming that I read that entire  5 book in detail.  I did not dwell on this piece, not to  6 my memory, so you'll have to refresh my mind on this.  7 Q   The pieces, and I am just going to ask you did you  8 read the piece in there by James A. McDonald on  9 "Images of the Nineteenth-Century Economy of the  10 Tsimshian"?  11 A   I can't recall that I have, but I can't say that I  12 didn't.  I mean this -- we are talking about something  13 I wrote now first draft of this some five years ago.  14 So I may have, but I don't believe I cited in my short  15 report in evidence.  16 Q   Do you know James A. McDonald?  Have you heard of him  17 before?  18 A   I was the external (?) at his PhD exam at U.B.C.  19 Q   You were?  2 0 A   I was.  21 Q   And did he get his PhD?  22 A   Barely.  If you want to know the truth.  23 Q   Barely.  24 A   He got it.  25 Q   Thank you.  26 A   It was a difficult degree.  27 Q   Now, what -- and you will see on -- perhaps we could  28 mark this, my lord.  966-4.  2 9 THE COURT:  Yes.  30  31 (EXHIBIT 966-4:  Document entitled "The Tsimshian,  32 Images of the Past: Views for the Present" edited by  33 Margaret Seguin)  34  35 MR. WILLMS:  36 Q   And if you turn to the page 42 you'll see in a section  37 that's headed "Contact with the European Market."  I  38 guess we can him Dr. McDonald.  39 A   Yeah.  He's presently.  40 Q   Since he scraped through.  And in the second full  41 paragraph he says this, talking about the monopolies  42 and he talks about Legaic and other Tsimshian chiefs  43 in the previous paragraph, but he says this:  44  45 "As the chiefs' monopolies were competitively  4 6 expanded, more and more Indian groups came to be  47 incorporated into the network.  The Gitksan, for 13533  1 instance, were already trading at inland markets  2 were the Coastal Tsimshian for European  3 commodities from American sailing ships when the  4 Hudson's Bay Company trader/explorers reached  5 them, arriving from the east in 1826.  From that  6 first contact, the Baymen could not afford to  7 match the prices offered by the Tsimshians."  8  9 Now, just pausing there, that's consistent with what  10 your reading of Brown's journals has disclosed, isn't  11 it?  12 A   Yes.  But I mean if you want to be precise we would  13 have to say 1822, wouldn't we?  And perhaps 1808 if we  14 want to work in Fort St. James, but I won't quibble if  15 it's not a significant point.  16 THE COURT:  1802 at Fort St. James?  17 A   1806.  But for the Bay, in particular, we should have  18 1822, 23.  19 MR. WILLMS:  20 Q   Okay.  Now, he then discusses Trader Brown:  21  22 "The abilities of Trader Brown, who was charged  23 with extending the trade in the Babine Lake area,  24 were under question as a result of the unexpected  25 and serious composition."  26  27 Just pausing there.  You have noted that, haven't you?  28 A   Yeah.  I have no trouble with that.  29 Q  30  31 "The actual anthropological data on this time are  32 incomplete.  It is difficult to trace, for  33 example, what economic reorganization occurred, or  34 how labour power was reallocated as a result of  35 the fur trade, but the benefits of a greater  36 social productivity, along with the new wealth  37 that was realized in the form of luxury goods and  38 cheaper commodities, such as western cloths, rice,  39 molases, gunpowder, and other products, flowed  40 primarily to the chiefs and through them to the  41 rest of the Tsimshian."  42  43 Now, just pausing there, he's talking about the chiefs  44 on the coast?  45 A   Uh-huh.  46 Q   Legaic.  And in any of your reading --  47 A   Remember, Legaic comes on the scene in the 1830s. 1  Q  2  A  3  Q  4  A  5  Q  6  7  A  8  Q  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  A  24  Q  25  26  27  A  28  29  Q  30  31  32  A  33  34  Q  35  A  36  Q  37  38  39  40  41  42  A  43  44  45  46  47  13534  Well, that's Legaic II, isn't it?  Yes.  And there are a number of Legaics?  The important Legaic, yes.  But in any event, that is consistent with at least the  European trade with the Coastal Tsimshian?  Uh-huh.  Okay.  Then he carries on and says this:  "Others offer suggestions of important  organizational modifications occurring within  Tsimshian society during this time.  Marius  Barbeau felt that the trade led to a  crystallization of the social organization and to  the development of extensive hunting territories  with inviolate frontiers.  (This latter point may  actually have more to do with the privatization of  territories for the exclusive use of chiefs,  rather than the extension of the Tsimshian  frontiers to incorporate more land."  Now, just pausing there again.  Uh-huh.  In respect of the coast, are you aware of any Hudson  Bay's documents or historical records that's  inconsistent with that?  No.  But I want to comment on what you're saying, but  go ahead.  All right.  Well, I just -- just dealing with the  coast now, is there any inconsistency that you are  aware of?  There was no date on the coast at this period, so --.  The point is --  Now, can I just -- I do want to ask you one question.  Okay.  And that is this -- and that is this:  Is there  anything in your historical research of Brown's  journals and the records at Fort Babine that would  indicate that the coastal fur trade did not either  create or have a profound effect on the social  organization of the Indians in the area?  You are asking me for an opinion which I'm quite  prepared to give, which is opinion that I would argue  is as valid as any of the opinions expressed in here.  I'd like -- I'd like to preface that opinion by  backtracking, though, and stressing one point here  that McDonald says the actual anthropological data on 13535  1 this time are incomplete.  You agree.  It is difficult  2 to trace.  So the only solid description existing of  3 Gitksan, Babine, Wet'suwet'en social, political,  4 territorial organization, the earliest complete  5 description that we have is the Brown testimony.  I  6 would offer the suggestion that the system that we  7 have been over for the last two days is a very  8 well-articulated system, which suggests to me a system  9 that has been in place for some time.  The  10 ethnographers who have developed this thesis have not  11 developed this thesis in reference to any of the Brown  12 material.  It apparently was unknown to them.  He  13 mentions it here.  He does not address it, however.  14 And the previous ethnographic and archeological data  15 did not address that data.  And what is abundantly  16 clear from Brown is that you have a fully articulated  17 feasting system with house territories, family heads.  18 In other words, the system -- the very system that the  19 ethnographers describe begin to describe with Morice  20 some 60 years later is a system that essentially Brown  21 has just given us the bone outline for in 1820.  22 Q   In the 1820s?  23 A   That's right.  24 Q   And the coastal fur trade really started in the late  25 1700s?  26 A   By the late 1700s we should put a date on that.  The  27 area we're talking about here, the late 1700s, we're  28 really talking about the 1780s onward.  29 Q   Yes.  30 A  And I submit that the significant -- and I don't think  31 many would question that, that the really significant  32 coastal trade can be dated to about that time frame.  33 I doubt very much that the system in place, given how  34 well-articulated that system was, was created in that  35 short a period of time.  36 Q   Well, of course --  37 A   There is no hard evidence to prove that it was.  There  38 is no evidence on that point.  39 Q   And there is no evidence that it wasn't?  40 A   That's right.  41 Q   It's still a very interesting question.  42 A   It's a very interesting question.  But I would submit  43 that in developing their thesis that it was a product  44 of the trade.  The ethnographers might have been  45 better served had they used this information.  46 Q   But the point that I am suggesting here is that this  47 trade, which influences inland, starting from 1780, 1  2  A  3  Q  4  5  6  A  7  8  9  10  11  12  13  14  15  16  17  18  19  Q  20  21  22  23  24  25  26  A  27  Q  28  29  A  30  Q  31  A  32  Q  33  34  35  36  A  37  Q  38  A  39  Q  40  41  42  A  43  44  45  46  47  Q  13536  had been going on for 40 years before Brown got there?  That's right.  And you'll agree with me that Barbeau felt, at least  for the coast, that it was the trade that led to the  crystallization of the social organization?  That's right.  However, I would like to point out,  since I am here to speak as an expert on the fur  trade, that other areas where the fur trade had an  effect on the native tenure system, which I think we  can all agree is a crucial system to any economy,  those transformations took far longer than 40 years  and they occurred in a situation in which the trade  impinged more directly on the basic subsistence  economy than did this trade, which at this point in  time many would agree was predominantly a luxury  trade.  It was not a trade that cashed and  commercialized the core of the economy and that is the  salmon economy.  Now, the next part, McDonald carries on a quote from  Fisher, and he quotes from a Fisher article that you  also quoted as well in your report and said that there  were five changes to social organization correlated  with the fur trade.  The first was the creation of new  mercantile leaders such as Legaic.  Now, I mean that  is beyond dispute at least from the coast, isn't it?  The Legaic chiefs.  The Legaic chiefs.  Second, the concentration of  wealth in their hands.  Now, one thing —  Excuse me, what page are you on?  I am on page 43.  All right.  One thing, I suppose, that a first read-through of  Brown without carefully going back through it, as a  historical geographer, you might think that he noted a  concentration of wealth in the hands of some chiefs?  Yeah.  Is that correct?  Yeah, he did.  So that's, at least reading Brown, just reading it, it  appears to accord with number two.  There appears to  be a concentration of wealth?  Well, I take that as a leading question myself.  I am  not saying -- you are saying that this is what this  led to.  I am saying what he described was chiefs with  wealth concentrated in their hands.  If that's what  you are asking me I will say yes.  Then going on:  The consolidation of the powers of the 1  2  3  4  A  5  6  7  8  9  10  11  12  Q  13  14  A  15  Q  16  17  18  19  20  A  21  Q  22  A  23  Q  24  25  26  A  27  Q  28  29  A  30  31  Q  32  33  A  34  35  36  37  38  THE  COURT:  39  40  MR.  WILLMS  41  THE  COURT:  42  MR.  WILLMS  43  THE  COURT:  44  MR.  WILLMS  45  46  Q  47  13537  leaders, and you'll see that they are ranked.  They  are one through 20 in terms -- or one through ten  Brown ranked them?  But that's my precise point.  He first arrives there,  it's -- he gives us a finely ranked list.  Now, you  are supposing that the fur trade produced that.  There  is no evidence of that.  What Brown is describing is  what Brown saw and that is a rank list of leaders.  I  will agree to that, but I will not agree to the  suggestion that you have evidence to prove that the  fur trade created it.  Now, just carrying on with Fisher.  He mentioned the  centralization of nine tribes around Port Simpson.  Uh-huh.  But one thing that you noted, for example, in  reviewing the Hudson's Bay records to the turn of the  century, is that Fort Babine, when it moved, also had  a concentration of people move with the fort to the  north end of Babine lake?  Uh-huh.  Is that correct?  Yeah.  And that there was ultimately a fort established at  Hazelton and a significant number of people moved from  Kisgagas and the northern Skeena down to Hazelton?  Right.  And what's the point?  Well, the point is that the people moved to where the  fort was.  But that's -- what's the relevance to 1822, which is  the very critical date that we're talking about?  Well, I'm roaming through the nineteenth century, Dr.  Ray.  But we have to -- if we are trying to talk about the  evolution of society in post context, we can't roam  around.  I am here as a historian.  You can't  understand what's going on unless you understand it in  sequence.  Mr. Willms, you have lost me.  You are reading from  Fisher?  :  No, I am reading still from --  Still from McDonald?  : -- McDonald quoting from Fisher.  Oh all right.  Thank you.  :  I am on page 43, my lord.  It's up at the top and I  have gone through the first four items there.  And the fifth item is the use of European trade as a  factor in inter-tribal politics.  And you have already 1  2  3  A  4  Q  5  6  A  7  8  Q  9  A  10  Q  11  12  A  13  Q  14  A  15  16  17  Q  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  A  36  37  38  39  40  41  Q  42  A  43  Q  44  A  45  Q  46  47  A  13538  given some evidence about the Atnahs who were armed  and wanted the Babines to trade with them?  Uh-huh.  And the trade that they wanted wasn't in berrycakes.  The trade was in furs?  That is certainly the implication there, that's for  sure.  All right.  And —  But remember, they came with guns and spears.  So that that would appear to have been something that  Brown observed?  Yes, he observed it.  Now, I just --  Remember too, though, that McDonald, since we brought  him up, talks about about a coastal trade going back a  thousand years, so nothing new.  Now, if you can just carry on page 43 McDonald  concludes with this paragraph:  "Further support comes from Michael Robinson, who  even argues that a new, more complex political  organization ('proto-statedom') was being created  by the chiefs.  Thus, while it may be true that  the trader made no attempt 'to change any basic  structures or beliefs of the Indian', it is  debatable to say that the trade made 'no extensive  impact upon Indian society' other than an  intensification of cultural practices, as Usher  goes on to suggest."  Now, just pausing with that statement.  You agree with  that, it's debatable to say that the trade made no  extensive impact upon Indian society other than an  intensification of cultural practices?  I don't say that.  But I said at the same time -- you  are talking now in the fur trade in very general  terms.  What you are asking me is did the fur trade do  more than just intensify things by the middle or late  nineteenth century, I would say yes.  In 1820 I would  say it's a moot point.  Well, isn't 1820 your starting point?  It is.  Yes.  And so --  He's not talking about 1820.  You don't know what it was like in 1810 or 1800 or  1790 or 1780, do you?  Nor does Michael Robinson, does he? 13539  1 Q   Well, I am just dealing with you.  2 A  Well, I have to respond to this.  We are talking now  3 about an academic literature which is making the  4 assumptions and I don't have access to this Robinson  5 article.  If he is talking about proto-statedom and so  6 on throughout the Legaic chiefs before, well, the  7 Legaic chiefs don't have an impact on the Bulkley  8 Valley until the 1830s.  But if you're asking me  9 what's going on in the 1830s onwards, that's not the  10 point that I addressed in the submission to the court.  11 Submission to the court was what was the base line  12 economy when we get the first detailed European  13 account.  That's what I dealt with.  14 Q   Well, I am also —  15 A  What happened after the fact is another aspect of the  16 history.  17 Q   And what happened before that is another aspect as  18 well?  19 A   That is a question which we all will have trouble  20 answering since there is no data for it.  We have a  21 lot of opinion.  22 Q   This is an extract from the cross-examination of Dr.  23 Kari.  And it is -- my lord, I should advise you that  24 the quote which is at lines eight through 30 which I  25 am going to read is taken from Exhibit 883 tab 2.  2 6 THE COURT:  Who is the author?  27 MR. WILLMS:   The author is Dr. Rigsby.  28 Q   And so this is what I put -- I put Dr. Rigsby to Dr.  29 Kari.  And it's Dr. Rigsby at 883-2 and I don't know  30 if you are aware of this evidence, Dr. Ray?  31 A   I am not.  Could you please tell me who these people  32 were?  33 Q   Dr. Rigsby is a linguist, a Gitksan linguist and one  34 of the plaintiffs' experts in this case.  Dr. Kari is  35 an Athabaskan linguist and one of the plaintiffs'  36 experts in this case.  And I am reading Dr. Rigsby to  37 Dr. Kari here.  And he says this:  38  39 "'Many small Athabaskan-speaking hamlets and local  40 groups, such as the Gitxsinjihl of Caribou Creek  41 must have been gradually and peacefully  42 Gitksanized in socioculture and speech.  The fur  43 trade seems to have spurred the Gitksan occupation  44 of the Middle Nass and, especially, the Upper Nass  45 and Upper Skeena territories.  As many oral  46 traditions testify, this was not a peaceful  47 gradual process, but some Athabaskan place names 13540  1 were retained.  It is interesting to note that  2 there were no Gitksan permanent winter villages on  3 the Middle or Upper Nass, nor on the far Upper  4 Skeena.  There were summer fishing camps and  5 hunting-trapping grounds in these territories, but  6 the real bases of operation were the large winter  7 villages at Kitwancool, Kispiox, Kisgegas and  8 Kuldo.  It was during this same period of the fur  9 trade that the Nishga and the Tlingit, along with  10 epidemic disease, reduced the Tsetsaut Athabaskans  11 of Portland Canal to a handful of survivors by the  12 turn of this century."  13  14 Now, just stop quoting there, you will see down below  15 that Dr. Kari acknowledges that this is Dr. Rigsby's  16 view in 1987.  17 A   Uh-huh.  18 Q   Now, I am going to suggest to you that what Dr.  19 McDonald said is completely consistent, that is the  20 expansion of the Gitksan tribes at the expense of  21 their Athabaskan neighbors, the Tsetsaut, is  22 completely consistent with what Dr. Rigsby says in  23 1987 in response to the fur trade?  24 A  Well, I submit in terms of the Epic of Nekt, which is  25 the only thing that McDonald in detail that I read  26 does not say this.  He is speaking specifically of a  27 specific grease trail and expansion along that trail  28 in terms of this pushing of these people.  He does  29 talk about that.  He does not say the Gitksan of the  30 Babine area weren't there, which I presume is the  31 drift of this quote here.  He doesn't -- this -- this  32 expert, whose background I don't know, so I am  33 speaking in a complete vacuum, doesn't seem to be  34 aware of the villages on the Babine River, does she?  35 Does she acknowledge the three that were there?  36 Q   Well, Kisgegas is -- Kisgegas is there.  37 A  Well, we are talking -- we've established, I think we  38 agree now after we have been back and forth with  39 Brown, that there were three villages on the Babine.  40 Q   Yeah, they're Atnah villages and you interpret that to  41 be Gitksan?  42 A   Yes.  43 Q   Well, let's just call them Atnah.  44 A  Well, I think it's clear that we can call them that,  45 but I think it's clear that they are.  46 Q   Were you aware that the spread of Nishga and Gitksan  47 speech communities into the Nass Valley and up the 13541  1 Skeena accompanied the territorial expansion of a new  2 sociocultural system?  Did you know that before you  3 wrote your paper on the Hudson's Bay records?  4 A   In general terms I know that these things -- I don't  5 know the specific thesis here, no.  I am not familiar  6 with it.  7 Q   And did you know that the linguistic interpretation  8 was that the differing social relations included a  9 different system of land and resource tenure?  10 A   You notice the thing that I find fascinating about  11 this quote, though, it says gradually and peacefully  12 Gitksanized.  If what she is saying is so, then it  13 seems to me that we see in 1820 something that  14 happened over a very long period of time, does it not?  15 Q   Well, it's the next paragraph.  The lower Athabaskan  16 hamlets which are inculturated.  I am dealing with the  17 Middle Nass, the Upper Nass and the Upper Skeena  18 territories.  19 A  Well, all I say she says it's a slow or gradual  20 process, we have a well articulated system in place in  21 the 1820s, which it did, the slow and gradual process  22 that she is talking about argues for me long antiquity  23 for it.  24 Q   You see, you are aware from the Hudson's Bay  25 documents, are you not, that from the north of the  26 Babine River to Sekanni -- to Bear Lake, those are  27 Sekanni areas?  28 A   The northern end of it certainly was.  The east --  29 northeast of Bear Lake.  But what was south and west  30 of Bear Lake in terms of the Brown record I think is  31 otherwise.  It's clearly Atnah, belonging to those  32 chiefs Need-chip and -- was it Quo-Em?  I think  33 it's -- we have established that fairly clearly from  34 the Brown record.  35 Q   Well, perhaps Exhibit 964-  —  36 THE COURT:  Do you want to mark this?  37 MR. WILLMS:  Yes, my lord.  38 THE COURT:  All right.  966-5.  39 THE REGISTRAR:  Yes, my lord.  40  41 (EXHIBIT 966-5:  Excerpt from transcript of evidence  42 of J. Kari)  43  44 A  Which one am I looking for now?  45 MR. WILLMS:   And the next exhibit, my lord, is 964-5 in book  4 6 one.  47 THE COURT:  Whose book one? 13542  1 THE REGISTRAR:  Mr. Ray.  2 MR. WILLMS:  In Dr. Ray's book one.  3 THE COURT:  All right.  4 MR. WILLMS:   And if you —  5 THE COURT:  I am sorry, what tab number, please?  6 MR. WILLMS:  It's tab five, my lord, and the page appears to  7 have three numbers on it.  There is a printed number  8 seven?  9 A   Sorry.  Which tab are we at?  10 MR. WILLMS:  11 Q   Tab five.  12 A  All right.  13 Q   Printed number seven and then a handwritten 97 and  14 then another handwritten eleven beside it.  15 A   Sorry, run --  16 THE COURT:  Mr. Willms, are you suggesting a convenient place in  17 Dr. Ray's report where notes on this document might  18 most conveniently be inserted?  If you can't it  19 doesn't matter.  20 MR. WILLMS:  My lord, I can't recall where it was —  21 THE COURT:  All right.  22 MR. WILLMS:  — that this document was cited.  23 THE COURT:  All right.  Never mind.  Thank you.  24 A  Was it 7, 97 11?  25 MR. WILLMS:  26 Q   7, 97 and 11.  27 A   Right.  Okay.  28 Q   And you'll see he discusses here in the middle  29 paragraph:  30  31 "While the Indians of this place was at the Atnah  32 village, the Principal Chief of the Siccanies of  33 the Prairies, and four of his countrymen arrived  34 there, to whom Caspins made a present of his  35 shirt, and some other articles and entered into an  36 arrangement for him to come -- "  37  38 A   "Here".  39 Q  40  41 " -- here on the first snow ensuing fall.  By the  42 different Indians who were then present, I  43 received the following information concerning  44 these people.  45 The Siccanies of the Prairies are a numerous  46 Nation, inhabiting the country to the north  47 of McDougall's River, which principally consists 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  COURT:  WILLMS:  A  Q  A  Q  A  13543  of extensive Plains, it abounds in Moose, Caribou,  Beaver and other fur-bearing animals, the two  former they hunt for their subsistence and -- "  'To cloath themselves."  " -- to cloath themselves.  And the latter as an  article of trade.  They speak the same language  and have the same habits as the Siccanies on the  other side of the height of the land -- "  I guess that's the Rockies,  "They live by the chase and never for any length  of time remain in the same place, but are always  moving about for the purpose of hunting.  They  never work the salmon save for a short time in the  spring when they kill some of the large kind for  present use.  At times they visit the Atnah  Villages on the banks of McDougall's River to  trade salmon when they are unfortunate in the  chase.  In the fall of the year they are in the  habit of hunting the beaver in the vicinity of  bear on Webster's Lake and requested the Indians  to visit them there on the first fall of snow, and  when they would accompany them here with their  fur. "  So that is as far as Brown knew where the Sekannis  were.  They were north of McDougall's River and they  trapped beaver around Bear Lake?  I'd like to -- can I comment on this?  Well, that's what -- I read that correctly, didn't I?  You read it correctly, but there is a problem with the  document.  It's unreliable, is that what you're going to say?  Yeah.  And I'll explain why, on this particular point.  Brown -- if you recall, Brown learned this from  another Indian, right?  This is his -- this is the  first report, right?  Is this not E(l) that we're  looking at?  11 E(l)?  I believe it is.  Yes, it is.  We should view his comments here in relation to E(2)  which is this report for 1826 when he goes in to the  reasons why he revises his report.  I forget, what's  the tab number for E(2), because it's relevant here to  figure out what was right and what was wrong in this  particular set of observations.  I don't know what 1  2  3  4  5  6  7  8 THE  9 MR.  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  2 9 THE  30  31  32 THE  33  34 MR.  35  36  37 THE  38  39 THE  40  41  42  43 THE  44  45 THE  46  4 7 MR.  13544  that referencing number system is here.  Q   Volume 1 tab five?  A  Volume 1 tab --  Q   And Volume 2 tab 12 is E(2).  My lord, by the way, at  page four of Dr. Ray's report he talks about these  fairly complete reports on Babine country at the top  of the page and --  COURT:  What page, please?  WILLMS:  Q   It's at the top of page four and you'll see --  A   I still don't have a copy of E(2) or --  Q   It's Volume 2 tab 12.  But you'll see at the top of  the page, the witness in his report referred to two  fairly complete reports on Babine country and  districts to the west.  A   I did.  Q   And it's B 11E(1) that I just read to the witness  from, the first fairly complete report.  A   That's correct.  But you recall in my discussion of  Brown the other day, we discussed Brown as an observer  and he was a man who was continually updating his  information.  That was his first report.  He hadn't  been there yet, and he heard this information from  natives, and he addressses that in Volume 2.  That's  why I am trying to get to it.  I am not saying  everything he said there is incorrect, but we should  at least compare the two.  I am just trying to find  the appropriate reference now.  COURT:  Well, then, we have got to go to tab 12, don't we?  A   Yes.  Sorry to take up your time, but I know -- okay.  If we go to tab 2, printed --  I am sorry, tab 2?  Tab 2, yeah, the page following printed nine.  COURT  A  WILLMS:  Q   Tab 12 you mean?  Yeah.  Yes  what is this?  Volume 2,  A   Yeah.  Tab 12, volume  COURT:  Yes.  Yes.  A   It looks like page 76 upper left.  Do you see that?  COURT:  I have got tab 12 with a printed nine on it.  I  don't see any other.  A   Okay.  Then flip over the page following printed page  nine.  COURT:  Oh.  A   The first full paragraph says "the information."  COURT:  Yes.  A   Can I read that?  WILLMS:   Page 15? 13545  1 THE  2  3 MR.  4 MR.  5 THE  6  7 THE  COURT:  It looks like it's page 76.  A   It follows printed nine.  WILLMS:  Oh here we are.  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  ADAMS  COURT  A  COURT  A  WILLMS:  Q   Yes  A  I believe that's a 16, my lord.  Is that a 16?  Oh, handwritten 16.  Okay.  If you say so.  Would you like me to read that?  A  A  Q  A  "The information I received regarding the  Siccaunnies of the Prairie, and stated my report  of 1823, is not to be relied upon."  That's the report you were reading from.  "They being described there as a numerous nation,  inhabiting a country consisting of extensive  plains, and abounding with Beaver and large  animals.  Whereas by the accounts I have had of  them since they are only a small band of  vagabonds, who are excluded from the society of  all other Indians on account of their crimes and  reside principally in the mountainous country  lying between the Babine River and Bears Lake."  So they are in the mountainous country.  Yeah, well, I -- maybe you misunderstood me.  I was  suggesting to you that they lived between McDougall's  River, Babine River and Bear Lake.  That's what he  says here, isn't it?  But we have to then get out this map and have a look  at what McDougall's River does and what north in this  case would be.  I submit that he's talking about this  territory in here.  The groups we were talking about  yesterday we were talking about the territories over  in here.  See, there is a string of mountains running  from Bear Lake down here.  Here's McDougall's River.  We were talking about this area yesterday over here.  Well, all that I'm asking is whether or not Brown  noted that from McDougall's River to Bear Lake was  Sekanni territory?  Yes.  But I'm saying that the way the river is  oriented, that doesn't tell you a whole lot.  Now --  Because he clearly -- Brown also subsequently on his 1  2  3  4  5  6  Q  7  8  9  10  A  11  12  13  14  Q  15  16  17  A  18  19  20  Q  21  22  A  23  Q  24  25  A  26  27  Q  28  A  29  30  31  Q  32  33  34  A  35  Q  36  A  37  Q  38  A  39  40  Q  41  42  A  43  44  45  46  Q  47  13546  trip describes what are Atnah territories related to  Need-chip in the area also north of Babine River.  But  I don't think the two -- the two reports, if you look  at the map, are not necessarily in conflict.  If you  look at geography of the area.  So somewhere in there in the mountains north of Babine  between the Babine River and Bear Lake, somewhere  there I suppose the Atnah hunting territory stopped  and the Sekanni territory started according to Brown?  Yes.  It might be helpful to look at John Stewart's  report for 1824 where he describes, I believe, Sekanni  territory as being primarily the area around the upper  headwaters of the Peace, Parsnip and Findlay rivers.  Now, one of the other works that you refer to in  writing your report was Adams work on the Gitksan  potlatch.  And --  It's not cited in my short report.  It was used in the  long report.  So yes, I cited it, but it's been four  or five years now since I read it.  And you recall that Adams commented that the people in  the Kitwancool spoke Tsetsaut?  Yes.  And that people speaking Stikine were living in  Gitsegukla and Kitwancool?  Yes.  And what time period is it when we find this  information?  Well, I think —  This is memory ethnography done this century, right,  well after the fact of these reports.  So you are  reading backwards into the history.  Yes.  He says as recently as the 1830s half of the  inhabitants of Gitsegukla spoke the Hagwilget language  and the Village of Kitwancool was half Stikine?  As early as.  And what is the reference?  No.  As recently?  As recently?  Yeah.  It doesn't say it was.  It says as recently.  No  evidence, and it's post Brown.  Well, this is something that's been adopted by one of  the plaintiffs' witnesses in this trial.  Well, I haven't seen -- I haven't seen that.  All I am  saying is that you are asking me to respond to this as  a historian.  This is talking about a period after  which we are focused in this record.  Well, I'm talking about a period that is  contemporaneous and precedes the period that you are 13547  focusing on.  The 1830s is contemporaneous?  Yes.  Correct?  But you are saying as early as.  No.  As recently as.  Oh, as recent.  No.  He says as recently.  As recently.  All -- well, I don't have evidence on  that one way or the other and as far as I know there  isn't any historical document that can establish that  one way or the other, so it has to be a matter of  opinion.  There --  One thing that you noted on your review of the  Hudson's Bay documents was that putting aside fur  trapping, the exploitation of animals by the Atnahs or  the Babine/Wet'suwet'en was pretty minimal?  Uh-huh.  Is that correct?  Uh-huh.  You have to say yes or no.  Oh sorry.  Yes.  This I assume means in terms of food  and that sort of thing.  I have to say it would have  some for clothing.  :  What did you say, Mr. Willms, by the — by the  25 Atnahs or Babine?  26 MR. WILLMS:  Or the Babine/Wet'suwet'en.  2 7 THE COURT:  Thank you.  Now, we started off here with Dr. Robinson's article  and I'd like to return -- you don't need to have it in  front of of you unless you want to review it.  I'd like to review it.  But you know that one thing that Dr. Robinson relied  on in concluding that there was really no reason for  sophisticated land tenure and no reason for hierarchy,  hierarchical development before the advent of the fur  trade, one of the references of Dr. Robinson were Drs.  Goldman, Dr. Stewart, Dr. Kobinsky, Diamond Jenness,  and Morice and anthropologists and archeologists, is  that correct?  Uh-huh.  In other words, you are referring to the  ethnographic literature, and I will speak to that in a  minute if you want.  Yes.  Yes.  But that is what she -- is one source of her opinion  and you recognized in reading her opinion or report  1  2  A  3  Q  4  A  5  Q  6  A  7  Q  8  A  9  10  11  12  13  Q  14  15  16  17  A  18  Q  19  A  20  Q  21  A  22  23  24 THE  COURT  2 8 MR.  wil:  29  Q  30  31  32  A  33  Q  34  35  36  37  38  39  40  41  A  42  43  44  Q  45  A  46  Q  47 1  2  3  4  5  A  6  7  Q  8  9  10  11  12  13  14  A  15  Q  16  A  17  Q  18  19  20  A  21  Q  22  23  24  25  26  A  27  28  Q  29  30  31  32  A  33  34  35  36  Q  37  38  39  A  40  Q  41  42  43  A  44  45  Q  46  47  13548  that that is a conclusion that many anthropologists,  for example, have come to, for example, that house  owning territories among the Wet'suwet'en is  relatively recent?  That's the conclusion they came to in the absence of  any good historical records, that's correct.  Now, I would like to put a series of propositions to  you and ask you to identify, if you can, a Hudson's  Bay reference that refutes it.  And the first one is,  the first proposition is the Gitksan moved up into the  Upper Skeena and the Upper Nass in response to the  coastal fur trade.  Now, is there anything in the  Hudson's Bay records that refutes that proposition?  In response to which fur trade?  The coastal fur trade.  It doesn't speak to it.  All right.  So the answer is there is nothing in the  Hudsons' Bay reports that refutes that because it  doesn't speak to it?  Correct.  Now, second, is there anything in the Hudson's Bay  records which refutes or disputes conflicts between  the inhabitants of the Skeena River and the Nass River  in the late 1700s and early 1800s that is armed  conflicts?  Obviously not for 1820.  We don't have a record.  There is no historical record to establish that.  Is there anything in the Hudson's Bay documents which  refutes the proposition that Carrier social  organization was patterned after Tsimshian or Gitksan  social organization?  I say it makes that an open question, because Brown  makes it clear that the two societies were very  similar in 1820 and you cannot conclude from that that  who borrowed it from whom.  But I'm putting my questions in terms of refuting.  There is nothing in the documents that refutes that  proposition.  It's unclear, but it's not refuted?  Doesn't speak to it.  All right.  Fourth, trade between the coast and  occupants of the Bulkley and Skeena drainages had  occurred prior to the end of the eighteenth century?  Trade had occurred.  Well, the Hudson's Bay Company  doesn't speak to that.  And finally, notions of beaver trapping territories  where access was limited by or owned by a chief  developed in response to the coastal fur trade.  Is 1  2  3  4  5  6  7 THE  8  9 MR.  10  11  12  13  14  15  16 THE  17  18  19  20  21  22  23  24  25  2 6 THE  2 7 MR.  2 8 THE  2 9 THE  30  31 MR.  32  33 THE  34  35  36  37  38  39  40  41  42  43  44  45  46  47  13549  there anything in the Hudson's Bay records that would  refute that?  A   The references in the Hudson's Bay Company to that  system are in relation to the feasting system, the  antiquity of which we can't establish.  So I guess  that the record doesn't speak to it since it can't.  COURT:  Mr. Willms, could I have that question again?  The  nature of beaver trapping territories --  WILLMS:  Notions of beaver trapping territories where access  was limited by or owned by a chief developed in  response to the coastal fur trade.  That was the  proposition.  And the question was:  Is there anything  in the Hudson's Bay records that would refute that and  I think the witness' answer was they don't speak to  it.  COURT:  Yes.  Q   Perhaps we can get started, Dr. Ray, on your Exhibit  962, and that's tab four, and you should have before  you at the same time your report, and you probably  don't need anything else.  A  Which -- which volume are we at?  Q   Volume 3.  So all you need for the present purposes is  your draft at tab four, which has been marked Exhibit  962, and your report, which is Exhibit 960.  A   Right.  COURT:  I am sorry?  WILLMS:  It's Volume 3 tab four, my lord.  COURT:  Yes.  Thank you.  COURT:  I wonder, Mr. Willms, is there any point in starting  this in five minutes?  WILLMS:  It would be more convenient to take a run at it  after lunch.  COURT:  Yes.  I think we will adjourn until 2 o'clock.  (PROCEEDINGS ADJOURNED PURSUANT TO LUNCHEON  ADJOURNMENT)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Laara Yardley,  Official Reporter,  United Reporting Service Ltd. 13550  1 xh2 A.J. Ray (for Plaintiffs)  2 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON ADJOURNMENT)  3  4 THE REGISTRAR:  Ready to proceed, my lord.  5 THE COURT:  Thank you.  Mr. Willms.  6 MR. WILLMS:  7 Q   Now, the documents that we were organizing were Volume  8 3 of your document book and your report.  I just have  9 one question before we get going, and that is the  10 first document that has been disclosed from your files  11 is the document at tab 3 which has been marked Exhibit  12 961, the draft dated February 17th, 1984.  Was there  13 no correspondence between anyone at the tribal council  14 and you setting out what the scope of your work was to  15 be?  16 A  We never -- we never signed a contract, nor did we put  17 it in writing.  It was just a verbal understanding.  18 Q   Can you explain how did you come to be engaged?  Who  19 approached who, and when?  20 A  Well, I have a colleague, or had a colleague at UBC in  21 the history department, now retired, Keith Ralston,  22 who I don't know exactly what his relationship with  23 the council was at that time, but he was, I think,  24 involved in the Kemano hearing, whatever it was.  And  25 I came to UBC in 1981 and Keith suggested it might be  26 useful for them if I did a history of the early  27 involvement of the Hudson's Bay Company in this  28 territory.  And I can't remember the exact sequence of  29 events after that, but it was agreed that this would  30 be useful.  And that's what I agreed to do, I agreed  31 to do it on the basis that I understood at the time  32 they were strapped for cash so I said I would do it on  33 the basis that my expenses incurred in actually doing  34 the report -- I did not charge them a fee to produce  35 the report, I simply charged them the expenses I  36 incurred in preparing the report.  So it was -- the  37 long and short of it is it was a very informal  38 arrangement.  There is no contract and no  39 correspondence that I could dredge up, but I don't  40 keep records the way you people do.  41 Q   I wouldn't be so quick to say that.  42 A   There might have been.  43 Q   Okay.  Now, let's turn to tab 4.  And if you would  44 please turn in tab 4 which is Exhibit 962 to page  45 seven.  46 A   This is the 16 January report, right?  47 Q   1985, yes. 1  A  2  Q  3  A  4  Q  5  6  A  7  Q  8  9  10  11  12  A  13  Q  14  15  A  16  Q  17  18  19  20  21  22  23  24  25  26  27  28  29  A  30  Q  31  32  33  A  34  35  36  37  38  39  40  41  42  43  44  45  46  47  13551  Yeah.  And at the same time --  Did you say page seven?  Sorry.  Page seven.  And at the same time Exhibit 960, which  is your report, page nine.  Okay.  And what you have said in your draft at the bottom of  page seven, it's the last -- second to last line:  "Cabbah", C-A-B-B-A-H, "was one of these, and he was  the leading chief of one of the Babine tribes" in  quotes, and then you have clans --  Question mark.  -- Question mark.  And then in the final you say on  page nine, and this is midway down that paragraph.  M'hm.  "Cabbah was one of these and he was the  leading chief of one of the Babine  'tribes'."  And then you go on to say:  "The latter term was used by the traders to  identify the various subgroups of the  Babine, Wet'suwet'en and Gitksan; thus  'tribes' in fact were the houses or  lineages."  M'hm.  Now, what Hudson's Bay documents did you read between  January 1985 and the time of your report that allowed  you to make that addition to your report?  Well, let's back up again back to how I got into this  whole thing.  When I first arrived here in B.C. this  was my first research into this area and so I was  re-familiarizing myself with some of the literature  after I did this search through the archives.  So in  this first volume here I was speculating, brackets  clans.  Remember, this was an internal document for  comment and on the basis of feedback and suggestions  it seemed -- I mean, clans in anthropological  literature they refer to clans as sometimes clan  segments, which are really groups, subgroupings of  clans.  I read lineage in that sense.  So to me it's  not clear whether we are talking about a full clan,  but we're clearly talking about more than a single  house and therefore it seems reasonable in that 13552  1 circumstances to probably at least use the term  2 lineage in this instance as opposed to a full clan.  3 So it really reflects my revision based on feedback  4 and thinking about the matter and re-examining the  5 record.  And having re-examined the record again very  6 extensively this last week I would say the lineage in  7 this sense I'm more content with than my first  8 speculation of clans.  Not that I think there might  9 have been clans there, but I don't think in this  10 context it's necessarily a clan, it's not necessarily  11 isn't either, I would admit.  12 Q   Lineage could mean related by blood; right?  13 A   Kinship group possibly be related by blood, yes.  It  14 may extend beyond that as well.  These are corporate  15 groups.  16 Q   Well, yeah, we've heard it described as that.  I just  17 didn't see anywhere in the Hudson's Bay documents  18 where it was described as corporate groups.  Maybe you  19 could help me with that.  Are they described as  20 corporate groups anywhere in the Hudson's Bay  21 documents?  22 A   There is one reference.  Now, again, I've been through  23 these records back and forth so I can't remember  24 exactly, but there is one reference I believe to one  25 of the Wet'suwet'en, one of the Western Babine, as  26 having as his descendant -- I'm trying to remember if  27 it was a bear -- what the animal was.  There is in  28 fact a reference to at least one of these groups as  29 being descended from what an anthropologist would  30 refer to as a mythical ancestor.  So there is in  31 evidence, but I can't right here give you that exact  32 reference but there is evidence to suggest they're in  33 existence, yes.  But not in this particular instance  34 here, no.  35 Q   Just in the same tenor, if you turn to page ten of  36 your draft and page eight of your final, in the middle  37 paragraph on page ten of your draft, the second line  38 you say:  39  40 "Caspine was the leading chief..." --  41  42 This is -- sorry.  It's page ten of your final and  43 page eight of your draft.  Let me get this straight.  44 A   Just a second.  Easy to make the mistake.  45 Q   Page eight of the draft, page ten of the final.  46 A   Right.  Okay.  47 Q   And in the final you have: 1  2  3  4  5  6  A  7  Q  8  9  10  11  12  13  14  15  16  17  A  18  19  Q  20  A  21  Q  22  A  23  Q  24  25  26  27  A  28  29  30  31  32  Q  33  A  34  35  Q  36  37  38  39  A  40  41  42  43  44  45  46  Q  47  A  13553  "Caspine was the leading chief of the  village but he was not the prominent chief  of his house."  Right.  You see that?  And in your draft what you've said is:  "Caspine was the leading chief of the  village but he was not the prominent chief  of his tribe."  And then you've got clan again.  So you've changed  that to house.  Now, did that come from the Hudson's  Bay journals or did that come from the feedback that  you were getting on drafts of your report?  Could you take me back to page ten?  I have to catch  this line again.  On page ten in the second paragraph --  Where are we?  -- Second line.  Oh, okay.  The word house appears in the final, the word tribe  paragraph or parenthesis clan appears in the draft.  Just let me back up.  Tribe is the word that was used  by Brown?  Not the only word.  He uses the term tribe, and he  uses the term band, and he uses the term family.  He  uses these three terms.  And he tends to use tribe and  band somewhat loosely, so you have to be careful in  each context which he's referring to.  He doesn't use clan and he doesn't use house?  He doesn't use clan, no.  And I can't remember in the  case of house.  I suspect not.  Okay.  So do you recall who it was that -- that  assisted your thought processes here on what these  were when you were interpreting the Hudson's Bay  records?  Well, for one it would be my -- just my general  familiarity with the organization.  These lineages,  for example, were -- we've been through this, I think,  the other day, were in fact in a given house were  multiple families who were related.  So in a sense  house and lineage and family as he uses them are  essentially interchangeable.  Well, he uses families.  Yeah.  I would say that of the terms in there the 13554  1 family would be the closest equivalent to what we  2 understand as house today.  3 Q   Or it could be very close to what we all understand as  4 a family today?  5 A   Except these are extended families.  6 Q   Well, I know you're saying that, but Brown presumably  7 coming from a Scottish background didn't have this  8 complicated kinship theory in mind when he used the  9 word families?  10 A   Yeah, but let's back up.  If we recall the description  11 of Hot-set we had 28 houses.  12 Q   He could use clan.  13 A  We had a population of 700, right?  Roughly some 700  14 people in 28 houses.  15 Q   Well, that's Ogden.  16 A   Ogden.  Okay.  But, I mean, we are talking about the  17 same village, right?  You agree that Hot-set is  18 Wet'suwet'en.  We are not sure exactly where on the  19 river it is, but we have a village of some 700 people  20 living in 28 houses.  Sounds to me as though these are  21 pretty big families, correct?  22 Q   Well, that's when Ogden is there.  23 A   Okay.  So —  24 Q   I'm just talking about Brown, and you're reading Brown  25 and you're describing the people that Brown described.  26 A   Okay.  27 Q   And you're describing them in your draft as being a  28 chief of a tribe, and you're describing them in your  29 final as the prominent chief of his house, and I'm  30 wondering who it was that helped you clarify your  31 thought processes on these anthropological terms,  32 'cause they're not his words, he didn't use house.  33 A   No, but I'm saying that my sense and understanding of  34 what the social anthropologists have to say about this  35 social organization of the Gitksan and the  36 Wet'suwet'en people, and considering the record let's  37 go back to Brown and Hot-set, if we don't want to deal  38 with Ogden, but as I recall, again I'm having to go on  39 memory, and I'm sure we can dredge it out here if I  40 get it wrong, but he described Hot-set as being a  41 village of some 700 people, with 20 ranked chiefs as  42 heads of families.  So it seems to me we're still  43 talking about groupings of fairly large people in  44 residential units.  So I accept your point that the  45 word house is not in Brown, but I think the inference  46 that what he's talking about is equivalent to what  47 ethnographers are talking about late 1  2  3  Q  4  5  6  A  7  Q  8  A  9  Q  10  A  11  Q  12  13  14  A  15  16  17  18  Q  19  A  20  21  Q  22  23  A  24  Q  25  26  A  27  Q  28  29  30  31  32  33  34  35  36  37  38  39  40  A  41  42  43  Q  44  45  46  47  13555  nineteenth-century is reasonable.  So -- well, anyway,  I just -- do you want me to say anything more on that?  Maybe you can just say this, there was nothing in the  Hudson's Bay documents that specifically delineated  the word clan and the word house?  No, and that's why I've used clan in brackets.  But tribe is used and family is used?  And band is used.  And band is used?  Yeah.  Okay. And you -- your understanding is that when he's  talking about tribe and band when you read it it looks  like it's interchangeable?  Yes, but not a hundred percent, that's why we'd have  to go through every single instance, but I think most  of the time that's a reasonable approximation, yes.  And he differentiates that from family.  Yes.  So we've got some sort of a grouping that extends  beyond the family.  Yes.  Now, if you could turn now to page ten of your  draft.  Okay.  And page 12 of your final.  And you'll see that in  your draft at page ten you've quoted Ogden?  M'hm.  And then you have a paragraph at the bottom of the  page ten which is not -- which has been taken out of  the final, and the paragraph says this:  "Ogden's observation that the village was  divided in half is of interest in that Adams  claimed Gitksan villages were divided into  halves by crest groups.  Marsden asserts  that there is no evidence to support Adams'  interpretation."  That's a personal communication.  That's Susan  Marsden, is it?  It's a woman I never met.  I got this letter out of  the blue, which I think you've got somewhere in your  records too, and that's what was written to me.  All right.  And then you carry on:  "If Adams is correct perhaps the Hot-set  settlement pattern of the early 18th century  reflected a similar social organization." 1  2  3  4  5  A  6  7  8  9  10  11  12  Q  13  14  15  16  17  A  18  19  Q  20  A  21  Q  22  23  A  24  25  Q  26  A  27  28  Q  29  A  30  Q  31  32  A  33  Q  34  35  36  A  37  Q  38  39  40  41  42  43  44  45  A  46  47  13556  Now, was it because of Marsden's communication to  you that you decided to delete that from the final or  why did you take that out?  Well, as I said, it, first of all, was speculation.  The village is described as divided in two, but since  I had no more information to deal on the point one way  or the other, and my main focus was on the economics  not the social I just decided to delete it.  I don't  know Marsden and it wasn't on the basis that I  considered her authority one way or the other, but --  The next -- it's page 12 of your draft and it's page  22 of your final.  And there -- it appears that the  paragraphs at the bottom of page 12 and over to the  top of page 13 of your draft have been moved to page  22 and revised somewhat in the final.  Let me read these two paragraphs.  So the second  paragraph on page 12 and on to page 13, is that it?  Yes.  Okay.  It looks like that has been moved, but revised on to  the last paragraph on page 22.  If you can read that.  Okay.  And -- okay.  Now, on the short — on the  submitted report where do we pick up?  Page 22, that paragraph.  Yeah.  I see now.  Okay.  Good.  Yeah.  Okay.  Just  the paragraph at the bottom of the page?  Yes.  Right.  Now, you can track some of the sentences verbatim, but  you can see there's been some changes there as well?  Right.  And the first change that I want to ask you about is  in your draft.  You said that Brown reported that the  villages increased in size as one descended the river?  M'hm.  And one of the largest was located near the forks.  And then in your draft you thought it might be  ancestral Kispiox or Kitsegukla, and then your final  you say it's the forks of the Bulkley and Skeena  Rivers.  And you've already discussed in your evidence  in chief that your initial view was that there was not  a settlement at the forks of the Bulkley and Skeena  River?  Yes, but on re-examining, going over that report  several times it was clear that there was and I was in  error in my initial reading of that. 1  Q  2  3  A  4  Q  5  6  A  7  Q  8  9  10  11  12  13  14  A  15  Q  16  A  17  Q  18  19  20  A  21  Q  22  23  A  24  Q  25  26  27  28  29  30  A  31  Q  32  33  A  34  Q  35  36  A  37  38  39  Q  40  A  41  42  43  Q  44  45  46  A  47  13557  Well, going back to The Epic of Nekt, which is one of  my favorite plaintiffs' exhibits.  Do I have a copy of that?  Yes. It's the -- oh, Exhibit 847-19, and it's page  66?  Right.  Thanks.  All right.  You'll see that in respect of the fort locations  described by MacDonald here, which during -- in his  report he said came into prominence in the 1700's and  petered out in the early 1800's, he has forts at  Kitselas, Kitwanga, Kispiox and Kisgegas, but no  fort -- you'll see that Gitanmaax is written in there,  but no fort there?  No fort at the forks.  At the forks?  Yeah.  Now -- and did you understand when you read  MacDonald's work on The Epic of Nekt that there were  also villages located at or near most of these forts?  Yeah.  And you also recall that the forks was described by  Brown as where Macdougall River met Simpsons River?  Right.  Okay.  Now, Dr. Ray, I'm showing you what is an  extract of a larger map, which I'm going to show you  as well.  And you can please take both of them.  The  larger map is a map of North America drawn by J.  Arrowsmith ordered by the House of Commons to be  printed July 31st and August 11th, 1857.  M'hm.  If you look at the bottom -- I think it's in the  bottom right hand.  To be printed, right.  First of all, do you know of or are you aware of  Arrowsmith?  Arrowsmith produced a series of maps over a long  period of time, some of which were based on company  records.  Hudson's Bay Company records?  I also know that John Stuart, I believe, comments on  the inaccuracy of Arrowsmith vis-a-vis New Caledonia,  but I forget the reference.  But you know Arrowsmith was making maps, and he was  making maps to the best of his ability based on the  information of the day?  That's a loaded question.  Of course, it doesn't mean  they're accurate.  The short answer to that is yes. 1  Q  2  3  4  A  5  Q  6  A  7  Q  8  9  10  A  11  12  Q  13  14  A  15  Q  16  17  A  18  Q  19  20  21  A  22  23  Q  24  25  A  26  27  28  Q  29  30  31  32  A  33  Q  34  35  A  36  Q  37  38  A  39  Q  40  41  A  42  43  44  45  46  47  13558  I'm not going to suggest they're accurate, I'm going  to suggest that Arrowsmith used the information of the  day to make his maps?  We are talking now 1857?  Yes.  Somewhat earlier.  Date unknown.  Okay.  And you'll see that on this map by Arrowsmith in 1857  that Simpsons River -- if you go up to Dixon Entrance  you can see Simpsons River there?  M'hm.  It's a remarkably bad map for the time,  actually.  And he has Simpsons River and then you can see Babine  Fort?  M'hm.  And then over, and so there's a river coming out of  the north end of where Babine Fort is?  M'hm.  And then if you go further over to the right you'll  see a lake where it appears this river starts with the  name Connelly Lake and Fort.  See that?  Yes.  That's why I'm amazed it's such a poor map of  the river.  First of all, you recognize that Connelly Lake and  Fort, Connelly Fort is at Bear Lake?  Oh, yeah, there is no problem with that.  But he's  got -- relative to Babine Lake he's got it in the  wrong direction, but yes.  He has the river properly -- if it's the Skeena  River -- if Simpsons River is the Skeena River he's  got it properly flowing out of Bear Lake.  I mean,  that's where the Skeena River rises?  It's one of its headwaters.  One of its headwaters.  And then he has a river coming  into it from Babine Lake?  M'hm.  And no mention whatsoever -- well, there's no Bulkley  River there or anything like that?  That's what's wrong with it.  Have you been -- have you reviewed documents where  Simpsons River was described as the Skeena River?  The early -- the very early accounts of New Caledonia,  the -- what this map shows is some geographic  confusion.  This is exactly the point I was trying to  make the other day of French maps.  This map for this  section we are dealing with here, that shows the  information roughly as Stuart and some described it in  the early days of moving into New Caledonia.  I would 13559  1 say with this 1857 date on here that you're looking at  2 information that probably dates to -- he's got the  3 fort on there, but he has used geographic information  4 that really dates back to the 18 -- I wouldn't even  5 say the 1820's.  6 Q   Well, he's got the fort at the end of the lake, so  7 that's got to be 1836?  8 A   The way the knowledge of the geography of this area  9 emerged in roughly the following sequence, and if you  10 want to get the idea of where these names and rivers  11 are we should be going back to John Stuart, who's I  12 think the person who originally named them.  But  13 Macdougall River is the river that drained the Babine  14 Lake.  Simpsons River was the river lying to the west  15 of that lake which joined it and flowed to the ocean.  16 Sometimes they joined the Bulkley as being -- the  17 Bulkley Skeena as being the Skeena.  And Arrowsmith is  18 really out to lunch in his rendering of this.  If you  19 look at a modern map, for example, the Skeena doesn't  20 flow in the way that this is indicated.  21 Q   Oh, I'm not suggesting -- what I'm trying to get at is  22 where the forks of Simpsons and Macdougall River, and  23 I'm trying to get at whether the Bulkley River and the  24 Skeena River, or whether they're at the Skeena River  25 and Babine River, or whether anybody knows where the  26 forks were back in Brown's day?  27 A   It's absolutely clear if we want to go through each of  28 one those documents one more time.  It's clear in the  29 context of each document what we're talking about.  If  30 you want to start throwing around forks in a very  31 general term you can try and mess up upper and lower  32 forks.  You can do that, but I'm not going to go along  33 with it, because they didn't do it.  Arrowsmith didn't  34 know what the heck he was mapping here.  35 Q   What about the extract that you referred to or I  36 referred you to yesterday about the Atnahs of Simpsons  37 River barring the fish from entering -- from getting  38 to the Atnahs of Macdougall River.  Now, how did the  39 Atnahs of the Bulkley River block the fish from  40 getting into the Babine River?  41 A  Why don't we look at the district report of 1826 which  42 has a heading called "The Atnahs of the Babine River".  43 Q   Well, no, no.  Maybe I didn't make that clear.  Do you  44 recall the reference to the Atnahs of Simpsons River  45 barring it to prevent fish from reaching the Atnahs of  46 Macdougall River?  47 A   There was a reference to the Indians barring the river 13560  1 flowing into Babine Lake.  We should look at the  2 passage again.  We've been back and forth over these  3 so many times I don't remember the exact wording.  4 This is the time when Brown learns --  5 Q   It's tab 10 of volume 1.  6 A   Tab 10 of volume 1.  Okay.  What page were we at?  I  7 found it.  8 Q   Page 44.  9 A   He said.  Look it here.  He says -- he says, "The  10 Atnahs of the forks of Simpsons River and those of  11 Macdougall River" —  12 Q   -- "Had quarreled amongst themselves and in  13 consequence of this quarrel the former had constructed  14 a barrier to keep the salmon from going up to the  15 latter."  16 A   That's right.  17 Q   So what he's telling you there is that Simpsons River,  18 as exactly what I was trying to explain to you a  19 minute ago, he says at the forks of the -- Atnahs of  20 the forks of the Simpsons River, i.e. the Bulkley  21 Skeena is what he's referring to, and those -- he's  22 now differentiating, and those of Macdougall River.  23 Those are what I tried explain the previous couple of  24 days are what I call the upper Atnahs.  The Macdougall  25 River is now the Babine River, so it is not a single  26 river.  All I would say to you about this Arrowsmith  27 map is it's exactly the kind of thing I was explaining  28 the other day.  Arrowsmith was a compiler of maps.  He  29 did not travel any of this territory.  He's getting  30 all of his information secondhand, and he's done a  31 rather bad job of it for 1857.  I'm sure you could  32 probably find better maps than that one.  33 Q   But I thought Simpsons River and Macdougall River  34 joined?  35 A   They do.  3 6 Q   Oh.  37 A   Is this a modern map?  Do we have a modern map?  3 8 THE COURT:  Yes, we have a modern map.  39 MR. WILLMS:  4 0 Q   We have modern maps, but it shows the Babine flowing  41 into the Skeena and then the Skeena flowing down to  42 where the Kispiox River comes into it and then it  43 flows further and the Bulkley River comes into it.  44 A   Until Brown traverses his theory they were not totally  45 clear what the relationships of these rivers were.  46 They saw the Babine River as being the Macdougall  47 River, and it joins at the forks with the Bulkley 13561  1 which was the Simpsons, and so if we were just gonna  2 put our minds -- let's go back and use a mental map  3 now trying to imagine ourselves as fur traders then  4 and what are they seeing.  Their vision of the Skeena  5 was that the Macdougall was one of the tributaries of  6 the Simpsons River and the Simpsons River was the  7 river that flowed to the coast beyond the forks.  8 That's what the geography was all about.  9 MR. WILLMS:  My lord, can we mark the Arrowsmith — I think we  10 should mark the original.  This is a smaller version  11 for each of us to follow along, but I think we should  12 mark the whole map which the witness reviewed.  13 THE COURT:  What is the next number?  14 THE REGISTRAR:  The next number is 968, my lord.  15 A   I remember Stuart saying Arrowsmith also had  16 fictitious rivers on here.  17 THE COURT:  The larger map will be 968 and the smaller  18 reproduction will be 968A.  19 THE REGISTRAR:  Thank you.  20  21 (EXHIBIT 968:  Arrowsmith Map - Original)  22  23 (EXHIBIT 968A:  Arrowsmith Map - Small Reproduction)  24  25 THE COURT:  Was there ever an earlier Anglicized name for the  26 Skeena?  27 A   There were some other -- as I said, one of the early  28 names was Simpsons and they combined it.  The Bulkley  29 was lumped in with the lower Skeena and that's what  30 they called the Simpsons River until they started  31 differentiating.  One of the problems of these as  32 these mental maps emerge we start piecing it together.  33 You can sort of see it on this this map here.  If you  34 go basically east of the Rocky Mountains you're  35 getting there reasonably good geographic coverage for  36 example of the Mackenzie and Slave and those rivers.  37 THE COURT:  All right.  But I can't assume then that at any  38 place I see reference to Simpsons that necessarily  39 means the Bulkley.  It may mean the Skeena?  4 0       A   Yeah.  41 THE COURT:  All right.  42 MR. WILLMS:  43 Q   And if you can -- and I'm putting before you a draft  44 of your report.  45 A   Right.  46 Q   It has a little note on it, "Pages 1-33 revised to 20  47 November 1984 after oral comments by Grant, Rush, 13562  1 Charles Bishop and written comments by Alfred Joseph,  2 Mike Kew and Clark & Cove."  And then there's a little  3 note on the front, "Richard please pass along to Skip  4 Ray, Neil"?  5 A   Yes, so these would be Neil's comments.  6 Q   These are Neil Sterritt's comments?  7 A   Yes.  8 Q   And perhaps some of Mr. Overstall's.  I think if you  9 look through this you'll see that there's some of his  10 too, but I'd like you to turn --  11 A  Also, I had comments from George MacDonald as well,  12 but they didn't seem to get in here.  13 Q   If you turn over to page 11 -- 11 of the draft.  14 A   Of this thing you just gave me?  15 Q   Yes.  This is —  16 A   Right.  17 Q   Something you produced and somebody else noted it  18 up —  19 A   Yeah, right.  20 Q   -- In November.  Now, on page 11 you can pick up where  21 we were in your draft Exhibit 962 at page 12.  22 A   Just a sec.  Let me put this down.  23 THE COURT:  What is 962?  24 MR. WILLMS:  It's the draft at tab 4, my lord.  I'm right on the  25 same line that I read to the witness from that, from  26 page 12 of tab 4.  27 THE COURT:  All right.  What page?  28 MR. WILLMS:  It's page 12 of tab 4 and I'm at page 11 of the  29 loose document that I just handed up.  3 0 THE COURT:  Yes.  31 MR. WILLMS:  32 Q   And you'll see there -- you say there:  33  34 "Brown reported that their villages  35 increased in sizes as one descended the  36 river and one of the largest was located  37 near the forks (either ancestral Kispiox or  38 Kitseguekla)".  39  40 Now, forks is underlined, and there's a note in  41 the margin that says:  42  43 "Note the junction of the Bulkley River and  44 Skeena River were known as 'the forks'."  45  46 That's Neil Sterritt's note?  47 A   I presume.  I haven't had enough correspondence with 13563  1 Neil to know what his handwriting looks like, but I  2 presume this, as you said, is a copy from him.  I'll  3 accept that's what it is.  4 Q   You received this, didn't you, from Richard Overstall?  5 A   This was when, four years ago now?  Is there any date  6 on here?  7 Q   Well, there's 20 November 1984 in the beginning.  8 A   Revised in '84.  Yes, so we are talking about  9 something five years ago.  I'm sorry if I am a little  10 fuzzy but until two, three days I hadn't even recalled  11 that I had lying around, so anyway I'll assume those  12 are his comments.  13 Q   You don't know when you got it?  14 A   No, I don't.  Presumably before I made the final  15 revision.  16 Q   Right.  And you'll see on page 20 as well of this  17 draft with Mr. Sterritt's notes on it you'll see in --  18 in the page where you say:  19  20 "The village between Weep sim and the  21 'forks' (the Bulkley-Skeena confluence)  22 undoubtly was Kispiox."  23  24 And there's a note to reinforce that.  "The forks  25 is always Hazelton", and then "Hazelton", and then at  26 the very bottom of page 20 in your type set you say:  27  28 "Of interest, there appears to have been no  29 settlement at the confluence of the Bulkley  30 and Skeena Rivers, the later location of  31 Gitanmaax."  32  33 And then there's the handwritten note "There was  34 Hazelton established 1866 as fur trade post."  35 Now, I'm going to suggest to you, Dr. Ray, that  36 when you read the Hudson's Bay journals it is simply  37 not clear where the forks are.  When the word forks  38 shows up there are any number of places where the  39 forks could be?  40 A  Well, except that Brown's second trip and his second  41 district report, which we went over the other day, and  42 we start counting from the villages he was at down  43 river argue against your point.  And the mistake I  44 made at this time is missing the fact that he clearly  45 identifies one at the forks, and in the context of  46 that journal I don't think you can read it any other  47 way.  The initial mistake in saying there was nothing 1  2  3  4  5  THE  COURT  6  7  A  8  9  THE  COURT  10  A  11  12  13  THE  COURT  14  A  15  16  THE  COURT  17  MR.  WILLM  18  Q  19  20  21  22  23  A  24  Q  25  26  A  27  THE  COURT  28  Q  29  30  A  31  Q  32  33  34  A  35  Q  36  37  38  A  39  Q  40  41  42  43  A  44  Q  45  46  A  47  13564  there was my mistake in reading the record, and in  fairness to myself this was my -- that was my first  pass through those records so I was still feeling my  way through the geography.  :  Didn't he say there was three villages below the  forks?  There's three upper villages near the forks of the  Babine and Skeena.  :  Yes.  There's one just -- one which we are not sure is Beast  or Bear River, and one between there and the forks --  one at the forks and three below the forks.  :  Did he say one at the forks?  Yes.  It's in the transcript I think now.  It should  be.  :  All right.  Yes, my lord.  And if you can turn to Dr. MacDonald  I'll give you two -- two alternative theories, Dr.  Ray, on the three villages below which coincide  with -- and do you have -- sorry.  It's George  MacDonald again.  Right.  At page 66.  And you'll see that on page 66 he's got a  fort at Kisgagas?  M'hm.  Sorry, which page?  :  66.  66.  Which appears to be at the confluence of the  Babine and the Skeena?  Right.  And one of the things that he said, or two of the  things that he said was first of all these villages  were two day's travel apart going downstream?  Those are the villages below the forks, yeah.  Below the forks, and that the uppermost village had a  trail over to a location -- to the land of the  Utsanass (phonetic)?  M'hm.  Now, if the forks are at Kisgagas, and if the villages  are where these forks, are then the uppermost village,  Kispiox, there is a trail over to the Utsanass  (phonetic); correct?  Yeah.  From there.  And then down a little further is  Kitwanga and then a little further is Kitselas?  Well, I have two problems to your thesis.  It just  doesn't fit George Brown's description.  Furthermore, 13565  1 George MacDonald read my report and he agreed with it.  2 Q   Which draft?  3 A   This draft, this long draft.  4 Q   Oh, this long draft.  Yes.  Yeah.  The long draft with  5 ancestral Kispiox or Kitsegukla being the one located  6 near the forks?  7 A   No.  This is the -- in general terms he agreed with  8 it.  9 Q   Yes.  10 A   But the fact of the matter is in terms of the Brown  11 thing we are talking about the relative location of  12 these villages.  The fact of the matter is the Brown  13 description makes it perfectly clear that your  14 interpretation doesn't apply.  15 Q   Okay.  Let's go to another interpretation, and this is  16 on page 12 of the Neil Sterritt comment.  Maybe we  17 should give it a number, my lord.  966-6.  18 THE COURT:  Right.  19  20 (EXHIBIT 966-6:  Tab 6 of Exhibit 966 -  21 Notes of Neil Sterritt)  22  23 A   Sorry.  Which page?  24 MR. WILLMS:  966-6.  25 A   Oh —  26 MR. ADAMS:  My lord, I wonder if we could just be clear which  27 pages are included.  The version I have is an extract  28 as far as I can see.  29 MR. WILLMS:  Well, no it's not.  It's all that we got.  All we  30 got was pages eight through --  31 THE COURT:  20.  32 MR. WILLMS:  21.  33 THE COURT:  21, yes.  34 MR. WILLMS:  I presume it was -- it was longer.  Well, I presume so too.  I think he was just doing his  commenting on pages on which he wanted to comment,  because I don't remember.  Now, you made a point about a calculation of Brown's  on the number of people --  M'hm.  -- In the Gitksan population.  And it's actually in  this draft at page 11.  That is in Exhibit 966-6.  The speculation that the Gitksan population was about  a thousand.  Brown's speculation.  Brown's speculation.  And you say it's an under  estimation considering there were eight major  35  A  36  37  38  Q  39  40  A  41  Q  42  43  A  44  45  A  46  Q  47 1  2  A  3  Q  4  5  6  7  8  A  9  Q  10  A  11  12  A  13  Q  14  15  A  16  17  18  Q  19  20  THE  COURT  21  MR.  WILLM  13566  villages.  Which we revised to nine, I believe.  Now, one of the things that you noted from Brown is  that when he estimated 300 adults at Weep sim when he  came back the next year he realized that that must  have been all of the adult males from the local  villages.  Around that village.  No.  Other villages.  Remember we are talking about ceremonial villages in  these other villages and there were two villages.  Five miles apart.  Yes.  Weep sim and Childocal and half a day to the  other village on the way back?  Okay, let's say two major villages.  If you wanted to  for the benefit of the argument go on the low side say  150 for the two big villages.  Well, let's -- let's go to the extract which is 964-12  where you were reading from.  :  What tab number is that?  3:  It's volume 2 at tab 12.  It's the thinner --  22       A   These are the documents or --  2 3 THE COURT:  Yes.  24 A   I can't keep track of what I'm looking for.  25 THE COURT:  What page number?  26 MR. WILLMS:  It's — it's — there's a printed eight and where  27 my notes indicate that the witness started reading in  28 direct with a number 13 in the upper right-hand  29 corner.  3 0 THE COURT:  Yes.  And —  31 A   I have no idea where we're at at this point.  32 THE REGISTRAR:  I've got it here.  33 A   Oh, okay.  34 MR. WILLMS:  35 Q   It's tab 12, and if you go to the printed eight and  36 there's a handwritten 13 in the upper right-hand  37 corner?  38 A   Correct.  39 Q   And then at the bottom is the part that you read about  40 the numerous raise last spring at the Village of Weep  41 sim I saw about 300 men.  42 A  M'hm.  43 Q   All right.  Now, if you carry on to the next page he  44 first of all that's last spring, so the spring before  45 he saw 300 men at Weep sim?  4 6       A  M'hm.  47       Q   Now, at the top of the next page he says this: 1  2  3  4  5  6  7  8  9 THE  10 MR.  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  COURT:  WILLMS:  Q  13567  "This spring I went down to the Village of  Childocal but did not see so many Indians at  the whole of the villages as in the  preceding year, and a considerable number  being at a distance in their winter  encampments.  From what I conclude" --  From which I conclude.  A  Q  A  Q  A  Q  A  "From which I conclude that all the young  and active men belonging to the different  villages attached to the above two".  Meaning Weep sim and Childocal.  "Were then assembled."  All right.  I read that as he's referring back to  the previous year and saying that 300 men from the two  villages were assembled the previous year.  That's the  conclusion he draws from coming back the next year and  finding nobody there?  Okay.  So we could take that as a rule of thumb and we  could do a recalculation.  Do you want to do that?  So then he does this;  "Taking these as the number of men capable  of carrying arms I do not suppose that this  part of the nation amounts to fewer than a  thousand individuals."  Now, what he's ease saying there, as I understand  it, is that for the Babine River there are about a  thousand people.  Now, I don't know whether there is  two villages, three villages or however many he  passed.  Well, we know there are three major villages and there  are a number of summer camps.  Yes, I just did a quick  recalculation if we want to -- so we would have --  But that's his thousand.  That's -- so this is for Babine River only.  Yes.  And this is the smallest number, and I was using that  to try and guesstimate and I didn't ever call it any  more than that, the total population of the Gitksan. 13568  1 So if we take his nine villages now by 150 we've still  2 got 1,350 men alone, adult men alone, and we would  3 have to multiply it by a factor of -- it's probably  4 reasonable to multiply by a factor of at least three  5 and that's, I think, giving you the benefit of the  6 doubt.  7 Q   Okay.  And on this one in -- referring to your Exhibit  8 966-6, you're disregarding the note that's made in the  9 margin, I guess by Neil Sterritt, that "Kisgagas was  10 always the largest Gitksan village".  You're assuming  11 that it wasn't, that they're getting bigger as they go  12 downstream?  13 A   Yeah.  Talking about Gitksan as a whole, yes, I would  14 disregard that, because I think -- I can't remember  15 now, but I presume Neil is referring to the Babine  16 River area.  But Brown makes it clear that the  17 villages as you go down get bigger and bigger.  18 Q   But he never went there, did he?  19 A   No.  If we do a recalculation on that basis we've got  20 by my count, I don't have my pocket calculator, but  21 we're say 4,000 on the low side for the Gitksan and we  22 don't know by what factor the downstream villages  23 increase in size.  So perhaps we can compromise and  24 say we've got a population of somewhere between four  25 and 7,000.  I'm afraid I wrote on one of your  26 documents.  It's a bad habit.  27 MR. WILLMS:  Well, it's actually your document.  It's your  28 exhibit.  I'm going to turn back to the drafts again,  29 my lord, now.  30 THE COURT:  Which draft?  31 MR. WILLMS:  The big draft and the final.  I'll give it a number.  It's 962, which is tab 4, what  I call the big draft.  Am I supposed to have Neil's comments?  No, you don't.  Not any more.  Okay.  And the pages that I'd like you to turn to are 17 in  both the draft and the final.  In your draft you are,  and in your final you're speculating about where the  settlements of Weep sim and Childocal were situated.  M'hm.  And you say in the third line of both you refer to the  settlements on Father Morices 1907 map, but in your  draft you call them abandoned settlements and you've  taken the word abandoned out in your final.  What was  it that caused you delete the word abandoned?  Quite honestly I can't recall.  And I think as I'm  32  Q  33  34  A  35  Q  36  A  37  Q  38  39  40  41  A  42  Q  43  44  45  46  47  A 13569  1 trying to mentally picture the Morice map I think what  2 I was referring to were these settlements that he put  3 on his map.  So at this point in time in the absence  4 of having gone over this stuff recently I would not  5 want to hazard a guess why I took the word abandoned  6 out, except that I was thinking in terms of former  7 sites.  So, anyway, the long and short of it is I did  8 this five years ago and I can't remember.  9 Q   Okay.  At the bottom of the page of both you talk  10 about Agent Loring's correspondence of 1890 indicating  11 that the village with the forks had been abandoned due  12 to Nishga raids.  And in your draft on page 18 you've  13 put in parenthesis "probably in the early 1850's" and  14 then you've taken the date out of the final.  Do you  15 recall why you took that out?  16 A   No, I don't.  All I can say is, again, this is an  17 early stage of getting to know this stuff, and it was  18 speculation and I took it out.  The truth of the  19 matter is I don't even remember reading Loring's  20 report.  21 Q   Now, you've already, and I think that my friend took  22 you through this at page 22 of your draft which  23 relates to page 21 of your final, but it's the portion  24 where you changed -- that there appears to have been  25 no settlement at the confluence of the Bulkley and  26 Skeena River and the later location of Gitanmaax, and  27 then you then speculate that Gitanmaax was one of the  28 three villages.  But then in your draft just on the  29 same vein at the bottom of page 23 --  30 A   Sorry.  Which one am I --  31 Q   Page 23 of your draft.  32 A   Right.  33 Q   And just on the same point of the forks and Gitanmaax  34 and whether there was anything there.  35 A   Right.  36 Q   In your draft you say:  37  38 "Also while there does not appear to have  39 been a village at the Skeena Bulkley forks  40 in 1826 major summer trading fairs were held  41 there."  42  43 A  M'hm.  44 Q   And you've taken that out of your final.  Now --  45 A   Yeah.  I've substituted -- near as I read it  46 substituted the line "either he misunderstood his  47 informants or Gitanmaax at the forks was one of his 1  2  Q  3  4  5  6  A  7  8  9  10  11  12  13  Q  14  A  15  Q  16  A  17  Q  18  A  19  20  21  22  23  24  Q  25  26  A  27  28  Q  29  A  30  31  32  33  Q  34  35  36  A  37  Q  38  39  40  A  41  Q  42  A  43  Q  44  45  46  47  13570  three villages."  Sorry.  Was that based on any new Hudson's Bay records  that you reviewed between the time of the draft and  the final or did you just reinterpret it with some  help?  Given the general understanding by everybody there was  a village there I -- it says exactly my thinking on  the matter, and it's clear now having gone through  those things, as we did the last previous two days,  that was one of the errors I had made and he refers to  that village, I can't remember now, at least two or  three times, but it's in the transcript.  It's the village at the forks.  The Skeena -- or the Babine Simpsons --  Simpsons forks.  Sorry.  The Bulkley Skeena forks.  No, no.  He doesn't use Bulkley River.  Anyway, we know what he means.  I'm talking about in  modern terms.  It's not -- it is not -- he is not  referring or was not referring to the forks of the  Babine Skeena, because he was at that forks when he  was talking about what was down river.  That's totally  clear from the record.  Well, we know he went as far as the Village of  Childocal?  Childocal, which was just short of the forks of the  Babine and Skeena, right.  Yes, we do know that.  Something that's called the Beast River or Bear River?  We went over that as well.  It's either Beast or Bear.  Re-reading his journals it's most likely Bear River,  but given what they knew at the time that's the most  likely assumption.  Could you turn to page 24 of your draft and page 23 of  your final.  And it appears here if you look at your  draft --  M'hm.  -- You can pick up claimed exclusive rights to certain  tracts of hunting and trapping and then Bll El, 2.  That's in your draft part way down the middle.  M'hm.  In the middle of the page.  Right.  Now, everything above that appears to relate to the  same portion on page 23 of your final which is  everything above "claimed exclusive rights" in the  second paragraph, but it appears to have been somewhat  rewritten. 13571  Just a second here.  I haven't got myself tracked in  yet.  On my draft 23 where, on the page top or bottom?  At the bottom of the page.  Is this where we're at, here?  You'll see "claimed exclusive rights to certain tracts  of hunting and trapping lands Bll El, 2 claimed  exclusive rights to certain tracts of" — now, above  that, as I make it, there have been some changes.  And, for example, one of the changes is that this  sentence has been added to the final.  "Nonetheless Gitksan and Wet'suwet'en  lineage heads did not hold private title to  property in the manner of English or  Scottish nobles."  Now, did you review any other Hudson's Bay  documents between the time you wrote your draft and  the time you wrote your final to be able to come to  that conclusion?  Just in the sense of understanding from the record  that these people -- these men of property were heads  of family and as heads of family were clearly  responsible for that family's territory, which is not  the way I understand -- I may have a poor  understanding of English and Scottish nobles, perhaps  they had the same responsibility, but I don't think  so, but it's clear in his context that these were  heads of families and the people on their territory  were their responsibility.  So the use of the word "men of property or nobles",  notwithstanding Brown's cultural background, your  interpretation is that it was completely different  from anything he's experienced before?  Certainly very different than he or any other fur  traders further east had experienced among native  people, yes.  That's one of the reasons it fascinated  him so much.  :  Can we take the adjournment now, Mr. Willms?  40 MR. WILLMS:  Yes, my lord.  41 THE REGISTRAR:  Order in court.  This court will recess.  42  43  44  45  46  47  1  A  2  3  Q  4  A  5  Q  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  A  22  23  24  25  26  27  28  29  30  31  Q  32  33  34  35  A  36  37  38  39 THE  COURT 13572  1  2 (PROCEEDINGS ADJOURNED)  3  4 I hereby certify the foregoing to be  5 a true and accurate transcript of the  6 proceedings herein to the best of my  7 skill and ability.  8  9    10 Peri McHale, Official Reporter  11 UNITED REPORTING SERVICE LTD.  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 13573  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Willms.  4 MR. WILLMS:  5 Q   Just carrying on with where your draft and your final  6 coincide, you do specifically note in your report that  7 it was beaver that could only be trapped with the  8 approval of the noble who held the land in question.  9 A   Correct.  10 Q   And you also noted that marten appeared -- there  11 appeared to be no restrictions on marten or on the  12 hunting of large game or the taking of fish.  And as I  13 understood your distinction, your explanation of why  14 this would be important, you suggested that for the  15 Wet'suwet'en the reason for the distinction was that  16 the beaver meat was important to feasting?  17 A   Uh-huh.  18 Q   Is that correct?  19 A   That's correct.  20 Q   All right.  But you also noticed that the land tenure  21 system described by Brown applied equally to the  22 Atnahs as well as the Babine?  23 A   Yes.  24 Q   And you also noted that the Atnahs didn't like beaver  25 meat; they thought it was unclean?  26 A   Yes.  That's what Brown tells us.  27 Q   So it probably wasn't very important to their  28 feasting?  29 A   One could -- one could assume that.  I don't know.  30 It's reasonable for the record, yeah.  31 Q   Well, isn't the real difference between beaver and any  32 other animal, that the currency of the fur trade was  33 the beaver?  34 A   No.  The —  35 Q   Didn't -- sorry.  Didn't you describe the Hudson's Bay  36 debt record at Fort Kilmaurs as being in beaver?  37 A  Well, you didn't let me finish my explanation.  As I  38 was saying, yes, I have said beaver was one of the  39 most important commodities.  It was the staple of the  40 trade.  It had been for a long time.  And that the  41 tradition of using it as a standard goes way back.  42 The company also attended in areas where it was  43 important to use a main market standard, which is  44 really just fixing on another part of this  45 comparative.  It's a curious thing, the assumption --  46 seems to me that you are making an assumption, though,  47 and that is if a fur becomes valuable, that encourages 13574  1 conservation and that explains the whole thing.  The  2 counterpoint would be, then why wasn't exactly the  3 same thing applied to marten, river otter, muskrat and  4 lynx?  Those furs actually had a higher relative value  5 than beaver.  6 Q   But I just want to start with what the currency of the  7 fur trade was, at least the Hudson's Bay fur trade.  8 A   You mean the unit of account.  9 Q   The unit of account was beaver?  10 A   Yes.  11 Q   The unit of wealth was beaver?  12 A   The unit of account, yes, was beaver.  13 Q   And the Gitksan really as far as you are aware had no  14 special reason for conserving beaver, because they  15 thought the meat was unclean and obviously therefore  16 wouldn't eat it at their Feast, like the Wet'suwet'en?  17 A   Yes.  They clearly didn't.  We don't know.  But  18 while -- it's not quite as simple as that, however.  19 Because again, if you go into these descriptions and  20 these district reports, as you probably know, one of  21 the most common winter coats of natives across the  22 whole of Canada was the so-called beaver coat.  That  23 was the winter coat.  And there are a few -- in fact,  24 some references in here to the trade of those coats.  25 So I would say that even if you take away the Feast  26 argument you still -- you are still dealing with a  27 situation in which this is a country not rich in fur,  28 and fur was an important winter garment, so if they  29 are not going to -- if they don't have access to furs  30 to wear, what else do they wear?  31 Q   Well, it's my suggestion, Dr. Ray, that the reason why  32 the resource was husbanded, and I'll use that term  33 instead of conserved, but the reason why the resource  34 was husbanded by the nobles was because it was the  35 currency of European exchange in the area at the time?  36 A   That's certainly a hypothesis you are entitled to  37 hold.  I don't share it, but --  38 Q   Well, what other hypothesis would hold equally for the  39 Gitksan and the Wet'suwet'en?  Certainly feasting  40 doesn't.  What does?  41 A   One of the things that beavers do is being an immobile  42 animal, they allow one to stake a territory quite  43 easily and in fact that's one of the ways territories  44 were staked elsewhere.  I think it's Harmon among  45 others mentions that fact.  So -- and I am saying to  46 you is if we are going to argue the thesis about if a  47 resource becomes commercially important and therefore 13575  1 it has to be husbanded, then we also have to ask  2 ourselves not only why would the Gitksan husband  3 beaver if they don't eat it, why aren't they  4 husbanding other things as well.  5 Q   Well, didn't you just answer that a minute ago?  You  6 said -- I mean the beaver are relatively immobile and  7 it would be easy to stake a territory for that as an  8 additional reason for the fact that it was the  9 currency of exchange of European trade?  10 A   It was one of the -- but on the coast currency of  11 trade was the sea otter, right?  12 Q   Well, not the inland trade I am sure.  13 A   No, the inland trade -- what I am saying is the inland  14 trade is simply not a beaver trade.  We have the  15 returns here from Fort Babine, I think in this report,  16 do we not, showing the furs taken out?  17 Q   Well, it's just that in going through your report you  18 seem to rely on the Feast as the reason why beaver is  19 treated differently than every other animal and every  20 other resource.  And it's treated the same way by the  21 Gitksan and the Wet'suwet'en, but the Gitksan thought  22 the meat was unclean.  And so I'm suggesting that the  23 other reason why they might have treated it exactly  24 the same way was something that was common to both the  25 Gitksan and the Wet'suwet'en and that was the beaver  26 was the currency of European exchange?  27 A   But I -- speculation that I am raising a reservation  28 on that point I am raising with you regarding other  29 furs I did raise in this report.  I can't remember in  30 here where the page is.  But I mean I am not -- I  31 can't prove or disprove your hypothesis with regard to  32 the Gitksan.  What we do have is solid information  33 with regard to the Wet'suwet'en and other Babine.  34 That we do have.  35 Q   Now, one thing that you noted, and this is in page 26  36 of your draft, but which is taken out of page 25 of  37 your final, in your draft on the bottom of page 26 you  38 say this:  39  40 "As was common throughout the West Coast area, the  41 social rank and associated land tenure system was  42 linked to the potlatch."  43  44 And then you -- then you have taken that out of your  45 final.  And I suggest to you that if you assume that  46 that's accurate, which it appears you did when you  47 wrote your draft -- 1  A  2  3  Q  4  5  6  A  7  8  9  Q  10  11  A  12  Q  13  14  15  16  17  18  A  19  20  21  Q  22  A  23  24  Q  25  A  26  Q  27  A  28  Q  29  A  30  31  32  Q  33  A  34  Q  35  A  36  37  38  39  40  41  42  Q  43  A  44  45  Q  46  47  A  13576  It was -- again, we are talking about my initial  impressions as opposed to my final decisions, yeah.  That that links quite neatly to the value of beaver  which is the currency of exchange at the time and  important at least in the Wet'suwet'en feasting?  The main change in this second -- in the final draft  was deletion of the word "potlatch," since it was not  used in the record.  Well, you also took out that whole line I just read to  you.  That's a bigger change, isn't it?  Which one?  Well, I read you from your draft:  "As was common throughout the West Coast area, the  social rank and associated land tenure system was  linked to the potlatch."  Oh, yeah, well, the whole feasting system was  inter-connected with the tenure system, yes.  I don't  have any trouble with that.  Okay.  So —  I thought you were quibbling about the word  "potlatch."  Well, I will quibble with that in a minute.  Okay.  So you didn't delete it because it was wrong?  No.  You just decided to take it out.  Okay.  I mean I don't think there is anything in my report  that suggests that I am saying it didn't relate to the  Feast.  Good.  Now, you've got "potlatch" changed to "Feast."  Uh-huh.  And can you explain why you've changed that?  Well, as I said, my background was from -- partly was  from anthropology and the term potlatch is what's used  out here in the literature at large.  Since I was  trying to stick -- keep this report as close to the  record as was reasonable, I decided to use the term  that is the term in the record.  The word "potlatch"  never appears in these records in this period.  All right.  Okay.  So what you are seeing now is a word -- is a  terminology closer to the record.  Okay.  Unlike your decision to put "house" into your  final instead of "tribe"?  Yes.  If you want to substitute "tribe" for "house," I 13577  1 don't have any objection.  2 Q   Okay.  Now, can you turn to page 28 of your draft and  3 page 27 of your final.  And in your draft at the  4 bottom of page 28 in summing up you say:  5  6 "It is clear from the foregoing that the early  7 contact society of Babine and Wet'suwet'en was  8 finally ranked.  Access to wealth or the means of  9 production was regulated by a land tenure system  10 in which tracts of lands were owned by clans, but  11 subdivided and apportioned to men of property or  12 nobles who were the lineage -- "  13  14 And then you have got parens "house"?  15 A   It should be square brackets.  I mean that's my  16 injection.  17 Q   "Heads."  All right.  Now, in your final you say that  18 the discussion clearly indicates that access to  19 resources.  So you have taken out --  20 A   Sorry.  I have lost -- where in the final?  Now, I  21 have lost myself.  22 Q   Bottom of page 27.  23 A   Yes.  Sorry.  Okay.  24 Q   All right.  Just picking up.  It's clearly indicates  25 there?  2 6 A   Right.  27 Q   And then it's "access to resources" instead of "access  28 to wealth," as you said in your draft.  2 9 A   Uh-huh.  30 Q   "In which tracts of land," and you said in your draft  31 "the tracts were owned by clans but subdivided and  32 apportioned to men of property who were the lineage  33 house heads," and I take it when you used the word  34 "clans" in your draft you mean tribe?  35 A   Yes.  I was thinking these larger groupings of these  3 6 families.  37 Q   All right.  And there is some subdivision and  38 apportionment.  And then in your final you've got them  39 instead of owning they just manage the tracts of land.  40 Now, what was it that caused you to change "wealth" to  41 "resources" to change the ownership of the clans to  42 management by house heads?  43 A   Because I'm talking here -- I shifted the emphasis  44 somewhat and talking about -- first of all, I think  45 we'll agree that furs, wild game on the land is a  46 resource, right, which is converted into wealth --  47 well, it can be a wealth in itself, but it's a raw 13578  1 material, right?  2 Q   Like marten?  3 A   Yeah.  Marten, beaver, fish, salmon, all these  4 resources are products of the land and the heads of  5 those families manage those tracts of lands, but they  6 are also - a bit loose writing on my part, I suppose,  7 they were also by the record, the record clearly says  8 they owned those properties.  So in that respect they  9 should have probably left the original on that point  10 as it was, because in that sense that is closer to  11 what the record says.  As we have said, men of  12 property possessors of tracts of lands, those with  13 land stakes or various terms to that effect.  14 Q   They managed the beaver trapping.  Isn't that what the  15 Brown record shows, beaver trapping?  16 A   He specifically addresses himself to that, because  17 that was one of his preoccupations, yes.  But the  18 problem is that ideally the record should have given  19 us more detail than it did.  We are not totally clear  20 what happens to the rest of the resource.  It seems to  21 me it would be reasonable to suppose that things like  22 marten, members of a house, we are talking --  I mean,  23 okay.  What term would you like me to use?  If we are  24 talking about members of the same family on a given  25 family's territory, it seems the way the context of  26 the record works I would say that these other  27 resources were accessible to the members of that group  28 in that territory, but beaver which was closely tied  29 to the feasting complex, was more tightly controlled  30 by the head.  That was -- that would be the way I  31 would interpret it.  32 Q   Well, in your report you specifically interpreted it  33 at page 25 and this is why I'm --  34 A   Final now or draft?  35 Q   In the final.  And this is why I am just wondering  36 about your change from "wealth" to resources, because  37 on page 25 you say:  38  39 "In contrast to beaver some other resources were  40 not as carefully husbanded."  41  42 And then you say:  43  44 "Men who did not have a land stake were allowed to  45 trap marten."  46  47 And then you say this: 13579  1  2 "This no mention is made about prohibitions  3 concerning the hunting of large game or the taking  4 of fish."  5  6 No mention is made of those two.  Now, certainly those  7 two might be called subsistence items, correct?  8 A   First of all, they took --  9 Q   Well, would you agree that those were subsistence?  10 A   Yes.  11 Q   Large game and fish?  12 A   Yes.  Could I say something about that?  First of all,  13 relatively little large game hunting was done in this  14 area and as far as fish was concerned Brown and others  15 make it clear that most of the fishing was a communal  16 activity except he doesn't explain the exception may  17 be with regard to the Hot-sett and the dip net  18 scenario, but these other groups, including the  19 Gitksan, were -- they fished with barriers and those  20 were collectively put together.  So -- and they  21 belonged to a particular village.  So --  22 Q   Well, the Babine —  23 A   It wouldn't surprise me in that sense, if you want to  24 use it in that sense it's commonly available to the  25 members of the house since they collectively are  26 engaged in the activity of obtaining it.  27 Q   And the Babines had nets and in fact they sold the  28 nets to Trader Brown and Trader Brown used the nets to  29 get fish?  30 A   That's right.  But if you read all of the accounts in  31 Stewart, Brown, Connelly and most of these people,  32 they point out that most of the fishing in this area  33 was done by barriers, which was -- these were -- a  34 bunch -- one person didn't build the barrier.  You  35 remember one exception with the Wet'suwet'en where  36 he -- they said, well, they couldn't get -- they  37 wouldn't cooperate on doing that particular activity.  38 But these other areas, it's -- the barrier is a  39 collective activity.  So it's a collective fishing  40 exercise.  So you wouldn't expect him to talk about  41 that in the same sense as a more individual activity  42 such as trapping would be where one or two people  43 would be more efficiently engaged in the activity.  44 Q   I suggest to you, Dr. Ray, that your draft in its  45 reference to wealth with particular reference to the  46 Hudson's Bay notes on the restrictions on beaver only  47 is a more accurate description of what is being 13580  1 regulated than your access to resources which from  2 your report itself is clear -- it is clear were not  3 regulated.  I mean it's wealth that access was  4 regulated to, isn't it?  5 A  Well —  6 Q   It's the beaver?  7 A   It seems to me it's fairly hard to draw that rigid a  8 distinction between wealth and resource.  It's hard to  9 have one without the other.  And again, you are asking  10 me about some revision that I made some time ago.  I  11 don't remember the exact.  I went through this careful  12 an analogy in making this revision as you are  13 attempting to draw here.  But --.  14 Q   Now, the next portion of your draft which is at pages  15 30 through 3 -- the top of 33 is a discussion of  16 coastal trade and especially a discussion of George  17 MacDonald and the Epic of Nekt.  And if you look at  18 page 28 of your final, that whole discussion has been  19 taken out?  2 0 A   Uh-huh.  21 Q   Was that your idea to take that out?  22 A   Yes.  Because -- no, it wasn't my idea to take it out.  23 The final report, the decision was -- first we went  24 over how I came to write my first report, right?  The  25 idea was that I was going to deal with the initial  26 Hudson's Bay company expansion into this area.  The  27 Council has hired other experts to deal with  28 archeology, linguistics and so forth.  So I deleted  29 the archeology since I did not do any archeology and  30 that's basically why it's not there.  31 Q   Okay.  You didn't take it out because you thought that  32 any of it was inaccurate or incorrect or wrong, did  33 you?  34 A   I didn't give that consideration one way or the other.  35 I was asked to take it out since they had experts  36 dealing with the archeology and I took it out.  37 THE COURT:  What is the part that's been taken out did you say,  38 Mr. —  39 MR. WILLMS:  Page — page 30 of — 31, 32 and just to the top of  40 page 33 to the Nass Rivers.  41 THE COURT:  Starting at the top of page 31?  42 MR. WILLMS:  Starting at the top, except early post contact  43 inter-village trade as the title is still in the final  44 at page 28.  4 5 THE COURT:  Yes.  46 MR. WILLMS:  But then in the draft everything that follows on  47 page 30 all the way to the top paragraph on page 33 1  2  3  4  5  6  7  Q  8  9  10  11  A  12  13  Q  14  15  16  17  A  18  Q  19  20  A  21  Q  22  A  23  Q  24  A  25  Q  26  A  27  Q  28  A  29  Q  30 THE  COURT:  31 MR.  WILLMS  32 THE  COURT:  33 MR.  WILLMS  34  Q  35  36  37  38  39  40  41  42  43  44  45  A  46  Q  47  13581  ending "Nass Rivers" has been taken out.  Now, the  fisher reference on page 33 of the draft is in.  There  is a -- there has been a little bit of rewriting, my  lord, but the fisher reference is really where the  report picks up again in respect of the coastal fur  trade.  Just dealing with the portions that were taken out,  you are aware, and there is no dispute, that there  were Russian goods that came into this area in the  eighteenth century?  Very, very few before the 17 probably 80s, according  to Jim Gibson who is the expert on this subject.  And then, of course, there was -- and there is no  dispute about this, because you have even noted it in  Brown's notes, that there is an European trade in  goods, American and British --  Yes.  -- in the eighteenth century that is coming into this  area?  Shipboard trade.  Shipboard trade?  Starting 1778 on the south coast of B.C.  All right.  Again very little before the 1780s.  And —  And that's mostly sea otter trade at this time.  You'll see on page 32 of your draft --  Oh.  My draft, sorry.  In your draft, yes.  What page, I am sorry?  :  Page 32 of the draft.  Yes.  That you say there that:  "The introduction of European goods --"  That first full paragraph:  "-- mostly ironwares into the regional economy in  the eighteenth century led to conflict as chiefs  struggled to gain control over important trading  routes."  Uh-huh.  All right.  Now, that -- you recognize that as being  taken from MacDonald? 1  A  2  Q  3  A  4  5  Q  6  7  8  9  10  11  12  A  13  14  15  16  Q  17  18  A  19  20  Q  21  22  23  24  A  25  26  27  28  29  30  31  Q  32  A  33  Q  34  Q  35  36  A  37  Q  38  A  39  Q  40  41  42  43  44  45  46  47  13582  Uh-huh.  Is that -- you have to say yes or no.  I am sorry.  I just had water in my mouth.  Yes.  Sorry.  And then you discussed the archeological evidence and  cite MacDonald, and then you say this:  "MacDonald indicates that Tsimshian-speaking  groups expanded their territory along these routes  at the expense of Athabaskan speakers."  That's right.  That's -- was it trail nine that we are  talking about?  He refers in this -- you're back to  the Epic of Nekt and rereading that, yes, he is  referring to a very specific trail in that case.  Well, he's referring to a couple of trails into the  Stikine, isn't he?  Yeah.  And he's speculating too.  We agreed on that  this morning, right?  He's talking about -- there is one trail into the  Stikine that goes up from Kitwanga to Kitwancool and  there is another route into the Stikine that goes up  the Skeena River?  But the primary one he's referring to is the northward  push towards where what he regards where the Russians  to be in that -- I don't have that Nekt thing with me  to know what route I'm talking about.  But his article  is referring to a very specific route.  I might add  that MacDonald is not an expert on the Russian fur  trade.  Could you turn to page 77 of the Epic of Nekt.  I don't have it with me, I don't think.  Or maybe I --  It's 847-19.  Just so that we are -- everyone is clear on what  MacDonald is talking about.  So which page are we at?  Page 77?  77.  He says at the top of the page:  "It was while plotting the major trading trails of  the Tsimshian against their new tribal boundaries,  achieved in the early eighteenth century at  expense of the Tsetsaut (Athapaskans), that I  became aware that the knew territories coincided  with long sections of two important trails to the  Stikine that were the source of trade goods to the 13583  1 Gitksan and Carrier people in the early 1700s.  2 This helped to explain why the Kitwankul tribe  3 waged such a costly war for what had previously  4 been a worthless piece of real estate.  There are  5 numerous details in the Beynon notes about the use  6 of trails and of the bridges which spanned the  7 rivers.  The example of the bridge at Kesgigas  8 village will serve to demonstrate this."  9  10 Now, if you look back to the maps -- first of all,  11 you'll see that two important trails to the Stikine  12 and he mentions the bridge at Kisgegas?  13 A   Uh-huh.  14 Q   Now -- and if you turn back two pages to his trading  15 trails.  16 A   Uh-huh.  We are now on page 75.  17 Q   At page 75.  You will see that there is the trail from  18 Kitwanga Fort that goes up and it's numbered three?  19 A   That's trail three, right.  20 Q   Trail three.  And you'll also see that there is a  21 trail that goes from Kitwanga through Gitseguecla,  22 Gitanmaax and then either through Kispiox up through  23 Kuldo and up to the Stikine to Dease Lake or through  24 Kisgegas and then back over to the Skeena and up to  25 Dease Lake.  Those two trails, Telegraph Creek and  26 Dease Lake, those are the Stikine trails he's talking  27 about?  28 A   Uh-huh.  But most of this discussion he is primarily  29 focusing on trail three as I recall.  30 Q   Well, he just -- he was talking about the Kisgegas  31 bridge which is not on trail three?  32 A   Furthermore, let's go -- where were we — where were  33 we -- that's page 77?  34 THE COURT:  Yes.  35 MR. WILLMS:  36 Q   Page 77.  37 A  38 "Against their new tribal boundaries, achieved in  39 the early eighteenth century."  40  41 Now, what is his evidence for that?  There is no  42 historical evidence for that, we'll concede that,  43 right?  44 Q   Historical?  45 A   There is no historical evidence that these boundaries  46 he's talking about -- I mean there is no historical  47 documentation for these alleged boundaries, is that 13584  1 not so?  2 Q   Just your oral histories?  3 A   He doesn't cite any.  4 Q   Well, I think you just read the oral histories.  5 A   So this -- what he is doing is he is interpreting his  6 archeology through ethnography.  7 Q   Yes, that's what I understand he's doing.  8 A   So you can get into a circular trap.  The archeology  9 proves the ethnology, the ethnology proves the  10 archeology.  11 Q   Well, are you discounting that?  12 A  What I am saying is we don't have evidence.  I can't  13 say it didn't or didn't happen.  We don't have any  14 evidence.  I am just asking if you can give me some  15 hard information that tells me that the scenario is  16 so?  And I submit to you there isn't and that the  17 Russian trade for the 1780s was not a large scale  18 trade.  19 Q   You see, he also -- he deals with Kisgegas, and I  20 won't deal with the bridge about the whistling bridge  21 in the next paragraph, but the next paragraph down he  22 says this, this is from archeology:  23  24 "It was soon apparent that the assemblage of  25 historic trade goods differed radically from other  26 sites in the area."  27  2 8 A   Uh-huh.  29 Q  30  31 "There were none of the glazed ceramics, clay pipe  32 fragments, nor even bead types found at the other  33 sites, such as Kitselas Fortress.  Instead, there  34 were only metal tool blades, weapons, brass and  35 copper ornaments, and two distinctive kinds of  36 trade beads.  The latter were not the type traded  37 by the Hudson's Bay Co., but they were identical  38 to those Russian beads on Tlingit costumes in the  39 Leningrad museum, collected in the early 1800s  40 from Russian America."  41  42 A   So I submit that that supports my thesis.  He is  43 talking about something collected in the 1800s, so  44 therefore it could have been traded in the 1780s or  45 thereafter.  4 6 Q   Yes.  And that's when they could have gotten there.  47 A  And he tells us nothing about volume, does he? 13585  1 Q   Well, I am more interested in when they got there, Dr.  2 Ray, rather than the volume of the trade.  3 A  Well, the fact of the matter is that until volume  4 reaches a substantial point it's hard to argue that  5 there has been a substantial culture change based on  6 my experience elsewhere anyway.  That's my opinion, of  7 course.  You are entitled to yours and he doesn't give  8 us any hard information to draw this conclusion.  9 Q   The only thing he does do is at the very bottom of  10 that paragraph that I read you in talking about the  11 excavation that he's doing or the excavation says  12 this:  13  14 "The father of one of our excavators, when  15 examining a trade kettle in one of the food cache  16 pits, said that the Gitksan called all such pots  17 'Lussan' for "Russian," as this was the early  18 source."  19  20 A   That still doesn't -- it doesn't say anything other  21 than there is some Russian trade goods in there and I  22 am not denying that at all.  What we are arguing about  23 is how much impact this trade had happened at this  24 time and I am just asking my point to you is there is  25 no concrete evidence to support this interesting  26 thesis.  I don't discount that it's an interesting  27 thesis, but there are no facts, solid facts to  28 establish it.  And the Russians were expanding in this  29 area and I know from Gibson's work on expansion of the  30 Russians that they are still very mostly active in the  31 Alaska area, they are moving down, they are trading  32 what would be regarded as land furs.  And he cautions  33 that one has to be careful.  He says that a lot of the  34 so-called lands furs the Russians are getting they are  35 in fact getting from the coast, the sea coast.  And  36 that's where they are caught as opposed to assuming  37 they are coming from the interior.  So all I am saying  38 to you is that prior to the 1780s there is some trade  39 goods coming in here.  The volume of trade is at best  40 thin.  41 Q   All right.  Let me put this proposition to you:  There  42 is nothing in the Hudson's Bay records that you  43 reviewed that would refute the proposition that  44 MacDonald makes, that Tsimshian-speaking groups  45 expanded their territory along these trade routes at  46 the expense of Athapaskan speakers?  47 A   I never said there was.  What I am saying is there is 1  2  THE  3  4  5  MR.  6  7  8  9  10  11  12  13  14  15  THE  16  MR.  17  18  THE  19  MR.  20  21  THE  22  23  MR.  24  25  THE  26  27  THE  28  29  THE  30  31  32  33  THE  34  35  MR.  36  37  38  THE  39  MR.  40  41  THE  42  MR.  43  44  MR.  45  46  47  13586  no evidence to the contrary position.  COURT: Mr. Willms, looking at that map on page 65, neither  of those trails 3 or 19 require a bridge at Kisgegas,  do they?  WILLMS:  My lord, my understanding, although this isn't the  best trail map in the world, but that the bridge at  Kisgegas, there was -- were goods traded up to Fort  Connelly and beyond.  In fact, there were Russian  goods that were traded beyond the Rockies prior to the  Hudson's Bay getting there, which would require  crossing the river, but that -- that either side of  the river up the Skeena, that the bridge -- now, I'd  have to go back to see the description that MacDonald.  He has --  COURT:  All right.  WILLMS:  -- a description in Dr. Ray's appendices of these  trails.  COURT:  Fort Connelly is on the Bear?  WILLMS:  Bear Lake.  A   Yeah.  COURT:  Bear Lake.  And that's the Skeena that flows out  of -- old Fort Connelly is on the Skeena, is it?  WILLMS:  It's on the Skeena.  It's on Bear Lake.  A   It's on the head of the Skeena.  COURT:  What is the river that flows out of Bear Lake?  A   Bear River into Skeena River.  COURT:  Bear River into Skeena River?  A   Yeah.  COURT:  So you could go up the Skeena to get to Fort  Connelly without ever having to cross the Babine River  at Kisgegas?  A   Certainly looks that way to me.  COURT:  According to this you could anyway, although there  may be a better reason why one shouldn't go that way.  WILLMS:  I think if you look at topographic maps there is  good reason why you might want to cut over at  Kisgegas.  COURT:  Yes.  All right.  Thank you.  That may well be.  WILLMS:  But it's Dr. MacDonald's description of the trading  trails that I am relying on, my lord.  COURT:  All right.  WILLMS:  Like the witness, I haven't seen this area.  A  Maybe you should take a trip.  WILLMS:  Q   Now, one thing, did you review any oral histories at  all?  A   None. 13587  1 Q   None?  2 A   None.  3 Q   Are you aware that there are oral histories about  4 conflicts in this area between the different ethnic  5 groups?  6 A   I said I haven't reviewed them.  7 Q   No.  I know you haven't reviewed them.  Were you aware  8 that there were --  9 A   Oh.  10 Q   -- oral histories that talk about conflicts at  11 Kisgegas, as Kispiox?  12 A   Such as they are mentioned in passing in here.  But  13 basically the answer is no.  I was doing archival  14 research.  I wasn't doing oral history.  15 Q   I am showing you one of the oral histories recorded by  16 Barbeau and Beynon which discusses the peace ceremony  17 between the Nishga and the Kisgegas and you'll see --  18 and these -- some of these you can date directly from  19 them and this is from Wolf Clan invaders, my lord.  20 One of the -- and that's on the title page, one of the  21 Barbeau Beynon --  22 THE COURT:  Yes.  23 MR. WILLMS:  -- collection.  The informant was John Brown  24 formerly of Kisgegas.  It was taken in 1920 and I'll  25 get to the dating in a minute.  But you'll see that  26 the first paragraph discusses the Nass River Indians  27 and the Kisgegas making friends, and the Kisgegas not  28 going to the Nass.  And then -- and I won't read  29 through the whole extract, but it talks about the  30 reasons for the disputes between them, and it's the  31 last page that provides some of the dating to this  32 oral history in the last paragraph where it says:  33  34 "This happened when the informant, John Brown, was  35 a child, nine or ten years of age, and he was  36 about 70 in 1920."  37  38 Which would take this back to about 1860.  And I did  39 note in your report, Dr. Ray, that you noted Loring,  40 that Kisgegas had been abandoned in the 1850s due to  41 Nishga raids?  42 A   So this is pushing south.  But I thought we were  43 talking about Kisgegas pushing north.  44 Q   Well, this is Kisgegas, but all that I am interested  45 in here is whether or not there is anything that you  46 are aware of in the Hudson's Bay records that indicate  47 that there were not disputes between the Nishga and 13588  1 the Kisgegas Indians as recently as 1850?  2 A  Well, we have the records, we have the Brown records,  3 which don't speak to much violence other than these  4 flare-ups between individuals within the territory  5 and --  6 Q   And barring of the river to prevent salmon from  7 getting up, which you call an economic advantage,  8 correct?  9 A   It wasn't bloodshed, was it?  10 Q   Well —  11 A   But that's the point.  You are talking about warfare.  12 That was -- economic blockade is another way of  13 forcing an issue, and I thought we were talking about  14 warfare.  Isn't that what we're talking about?  I mean  15 putting up a barricade to stop fish from flowing into  16 the Babine River, I mean if they wanted to in fact  17 engage in blood warfare they would have done so, but  18 they chose otherwise.  All I am saying is you asked me  19 is there evidence in those records that I looked at  20 for a lot of conflict in this core area that I looked  21 at and my answer to you is no.  You are talking -- I  22 thought we were talking about territorial expansion.  23 My understanding, most areas that I am familiar with  24 where post contact territorial expansion of Native  25 groups took place, a lot of bloodshed took place and  26 if that's what you are asking me, the answer is no.  27 Q   Well, didn't you note an armed party coming to suggest  28 with guns and spears that some trading should take  29 place?  30 A   Yes.  But that wasn't a war party, was?  It.  31 Q   Well, I don't know.  Guns --  32 A   No bloodshed occurred.  33 Q   And didn't you also note from the journals that people  34 at Hot-sett had been killed, that people were trying  35 to hide at Fort Kilmaurs?  36 A   But you are trying to equate internal --  I mean  37 people have committed murders in our society, we don't  38 call it war, do we?  I mean that's what we are talking  39 about.  They are internal conflicts which occurred  40 between individual families which were resolved in a  41 couple of occasions through Feast ceremonies.  There  42 is no reference in any of the Brown material of  43 organized raids of Gitksan or Wet'suwet'en northward  44 or toward the coast.  There is one reference, not in  45 the records that I cited, but there is one reference  46 in one of the Stuart Lake journals of a group of  47 Sekanni that came down on a war party, but they don't 13589  1 in fact do anything.  They are disuaded.  Now, I would  2 argue, since we are into this business of war, I  3 assume that one of your assumptions is that these  4 Gitksan are armed from the coast and are therefore in  5 a power position to push their way north and east.  6 But I would submit to you that if the Russians are  7 expanding down the coast from the north, why are not  8 the northern groups who would be getting the arms  9 first pushing south into Gitksan territory?  It seems  10 to me you could argue just as reasonable a counter  11 thesis, if you are talking about a relative balance of  12 power.  13 THE COURT:  Didn't we see a passage a moment ago when I think it  14 was Brown on his -- one of his journeys when he  15 counted the number of men, didn't he say that the  16 women and old people and children had gone into the  17 hills because they thought that it was a war-like raid  18 that was approaching?  19 A   They appeared it might be a raid coming, yeah.  So  20 they were on their guard for sure.  But I mean the  21 point is he asked me if there were any evidence or any  22 accounts of organized conflict and I'm saying that  23 there isn't.  24 MR. WILLMS:  Can that be Exhibit 966-7, my lord?  25 THE COURT:  That's the —  26 MR. WILLMS:  That's peace ceremony between the Nishga and the  27 Kisgegas.  28 THE COURT:  I am sorry?  Is this the Wolf Clan invaders?  29 MR. WILLMS:  It is from Wolf Clan Invaders.  I just handed  30 another one up, my lord.  31 THE COURT:  But the first one is what number, please?  32 THE REGISTRAR:  Be 966-7.  33  34 (EXHIBIT 966-7:  Tab 7 "A Peace Ceremony between the  35 Niskae & Kiskagas)  36  37 THE COURT:  All right.  38 MR. WILLMS:  And the next one speaks to the point that --  39 THE COURT:  All right.  That will be 966-8.  40  41 (EXHIBIT 966-8: Tab 8 "The Tsetsaut and Gitwinkul at  42 War" M. Barbeau)  43  44 THE COURT:  Well, doctor, I am sorry, I just want to go back a  45 bit.  If people are fearful of war-like attack just  46 because somebody shows up, doesn't that indicate a  47 mind set regarding hostilities? 13590  1 A  Well, as I mentioned to you before --  2 THE COURT:  Can one just ignore that and say well, nothing  3 happened so -- ?  4 A   No, I'm not -- your honour, what I was suggesting and  5 I mentioned briefly that I don't have the exact  6 reference, I am just talking from memory.  The  7 question was:  Was there warfare?  And the only case I  8 can think of of an organized war party showing up was  9 at Fort St. James.  Now, the trouble I'm having is I  10 can't remember if it was in Fraser or at Fort St.  11 James at this time.  But it was a Sekanni party.  And  12 there is some evidence that Sekanni alternatively  13 raided and traded on the eastern edges there of the  14 Gitksan territory.  That's a possibility.  And I  15 suspect if these Gitksan were on their guard, as you  16 say, and you're right, they obviously must have been,  17 that that -- it was coming from that quarters,  18 certainly I don't -- there is no evidence to suggest  19 that they feared that at this particular point in time  20 the Babine.  So it might have been fear of a Sekanni  21 party coming -- because remember Brown is coming from  22 the east and he's coming down the Babine River and  23 they hear the dogs barking and whatnot, and that's why  24 they took off into the hills.  So -- and that would  25 fit with a Sekanni threat.  But I don't think -- I  26 don't think -- well, in any event, that's -- in  27 reference to your question, that's the only one I can  2 8 come up with.  29 MR. WILLMS:  This next extract is again from Wolf Clan Invaders  30 and it's the Tsetsaut and the Kitwancool at war.  The  31 informant was Stephen Morgan of Gitsegukla, who  32 learned the story from his mother's brother who lived  33 at Gitwinlkul and who died long ago who was in the  34 Tsetsaut war which happened before he, Morgan, was  35 born, about a hundred years or a little over, and this  36 was recorded in 1923.  And I won't read through it,  37 but it talks about the disputes between the Tsetsaut  38 and the Kitwancool.  And if you work back you've got  39 it about a hundred years before sometime in the 1820s  40 the disputes between the Kitwancool and the Tsetsaut.  41 And that's -- the Tsetsaut are coming down this  42 Stikine trail through --  43 MR. ADAMS:   My lord, that's not what it says.  It says it  44 happened a hundred years before the informant was born  45 and that doesn't put it in the 1820s.  46 A   It puts it in the 1720s, doesn't it?  47 MR. WILLMS: 13591  1 Q   Well, it says he was in that Tsetsaut war which  2 happened before he, Morgan, was born.  The war  3 began -- if you read the next -- the next --  4  5 "A member of my family was a very brave man, whose  6 name was -- "  7  8 And then he gives the name.  9  10 "It was at the time when the Tsetsaut had a war  11 with the Gitwinlkul."  12  13 Now -- so as I read that, the war reference was from  14 the mother's brother who had to be alive when he told  15 it to Morgan who was a hundred years old.  16 THE COURT:  Well, he says it happened about a hundred years.  17 MR. WILLMS:  Yeah.  18 THE COURT:  Or a little over.  Sounds like he's talking about a  19 hundred years ago from the time -- and what is the  20 date?  21 MR. WILLMS:  And it was recorded in 1923.  22 THE COURT:  Yes.  Is that not correct, Mr. Adams?  23 MR. ADAMS:  Well, my point, my lord, is that it's not at all  24 clear whether it's a hundred years before Morgan was  25 born or a hundred years before 1923.  And we don't  26 know from this when Morgan was born, but that would  27 put it considerably earlier, that's all.  28 MR. WILLMS:  Well, let's go to the last page, because there is  29 some handwriting here which helps date it a little bit  30 more.  And I still say it's around a hundred years or  31 maybe a bit more.  But the last line is:  32  33 "I learned from the brother of my mother who lives  34 at Gitwinlkul and died long ago."  35  36 So that's who he learned it from.  He was in that war  37 himself.  38  39 "It happened before I was born, nearly a hundred  40 years ago or a little over."  41  42 Now, I read that as being a living person talking  43 about what someone who was living during the war has  44 told him and then died and dating it at about a  45 hundred years ago.  4 6 THE COURT:  All right.  Well —  47       A   Still isn't clear to me that's what it says, but we'll 13592  1 go with that, I'll go with that.  2 THE COURT:  That's a matter of argument.  3 MR. WILLMS:  That may be, my lord.  4 Q   And I just want to ask this witness whether or not  5 from any of the Hudson's Bay records that he's  6 reviewed there was anything to indicate that Brown had  7 information from as far afield as Kitwancool?  8 A  Well, of course we can't know that, can we?  All we  9 know is what he reported.  He doesn't report it.  10 Whether he knew about it is another matter and it's  11 forever for speculation, but it doesn't say anything  12 about it and the answer is no.  13 MR. WILLMS:  Perhaps we could mark that and adjourn for the day.  14 THE COURT:  Yes.  That will be 96 —  15 THE REGISTRAR:  966-8, my lord.  16 THE COURT:  Yes.  17  18 (EXHIBIT 966-8:  Document entitled Wolf Clan Invaders  19 by M. Barbeau)  20  21 THE COURT:  All right.  Gentlemen, I'm sorry to say that I have  22 something scheduled already in the morning, but we can  23 start at 9:30.  Is that convenient?  24 MR. WILLMS:  That's convenient for me, my lord.  25 THE COURT:  Yes.  And we can sit late in the afternoon if we  26 find if necessary to do so.  Are we more or less on  27 schedule?  28 MR. WILLMS:  My lord, I hope to finish in about an hour or an  29 hour and a half in the morning.  30 THE COURT:  All right.  Well, Mr. Macaulay is always brief.  We  31 will count on him not to let us down.  I am very  32 anxious not to sit on Friday.  There is a historical  33 prohibition against it that I would like to avoid.  34  35 (PROCEEDINGS ADJOURNED UNTIL THURSDAY, MARCH 23, 1989  36 AT 9:30 A.M.)  37  38 I hereby certify the foregiong to be  39 a true and accurate transcript of the  40 proceedings herein to the best of my  41 skill and ability.  42  43  44  45 Laara Yardley,  46 Official Reporter,  47 United Reporting Service Ltd. 13593  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47

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